[2004] KEHC 1337 (KLR)

JUDICIAL REVIEW : PRINCI PLE OF ULTRA VIRES

Rule (i) ulta vires the Commission and provisions ofthe Commission of Inquiry Act Cap 102

· Finding ultra vires and void ab initio. There is a duty not a discretionary power

· The act of publishing not covered by the limitation in O 53 rule 2 Rule 2 only applies to proceedings mentioned.

· Nullities, either due to lack of jurisdiction or otherwise outside O 53 rule 2

· Court has inherent powers to quash nullities and illegalities as well

· Under s 60 the court has wide jurisdiction to deal with illegalities as well

· Animistic v Foreign Compensation [1969] 2 AC 147 applied.

· Exclusion of clauses not effective where there is no jurisdiction

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO 1279 OF 2004

IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS

CERTIORARI AND PROHIBITION,

AND

IN THE MATTER OF THE COMMISSIONS OF INQUIRY ACT, CAP 102 OF

THE LAWS OF KENYA AND

GOLDENBERG AFFAIR

REPUBLIC ...................................................................................APPLICANT

AND

THE JUDICIAL COMMISION OF INQUIRY

INTO THE GOLDENBERG AFFAIR...........................1ST RESPONDENT

HON JUSTICE S O BOSIRE.........................................2ND RESPONDENT

PETER LE PELLEY.......................................................3RD RESPONDENT

NZAMBA KITONGA ....................................................4TH RESPONDENT

EX-PARTE

HONOURABLE JACKSON MWALULU

KIRIRO wa NGUGI

KEPTA OMBATI

SANDE OYOLO

MUTEMBEI MARETE

JACOB OPIYO

CYPRIAN NYAMWAMU

WAMBUA MUNYWOKI

PAUL THUMBI ) ........................................................................SUBJECTS

JUDGMENT

The Notice of motion dated 30th September, 2004 including the supporting Statement seeks the following orders.

1. An order of mandamus to compel the first respondent to summon the named persons to testify before it. The first respondent is a Commission of Inquiry appointed by the President of Kenya into what has been generally described as the “Goldenberg financial scandal Affair and the terms of the commission are set out in the two Gazette notices exhibited in the application among other exhibits. It is alleged that billions of shillings were irregularly paid as compensation for non existent gold and Diamonds and fictitious foreign exchange claims

2. An order of Mandamus to compel the second, third and fourth respondents to summon the same named persons. The second, third and fourth respondents are the Commissioners in the Inquiry, the 2nd respondent being the Chairman of the commission

3. An order of prohibition to prohibit the respondents from presenting to the President the Inquiry report and record of the inquiry proceedings until the named persons have testified in the Commission

4. An order of certiorari to remove to the court for the purpose of being quashed Rule (i) of the Rules and Procedures made by the second respondent vide Gazette Notice 1566/2003 dated 5th March 2003 to the extent that the Rule converts the respondents statutory power to summons witnesses from mandatory to discretionary power.

5. Any other relief and costs of the application

The Commission was appointed on 24th February 2003 under the Commission of Inquiry Act Cap 102 of the Laws of Kenya and the citation appeared in the same issue of 24th February 2003 vide Gazette Notice 1238. In this citation of the commission the President after setting out the scope of the commission directed the Commission in these words:-

“And I do direct that in accordance with the provisions of section 10(1) of the said Act, the commission shall summon any person or persons concerned to testify on Oath and to produce any books, plans and documents that the Commission may require”

On 14th March 2003 the Chairman of the commission formulated Rules and Procedures for the conduct and management of the proceedings of the Inquiry under s 9 of the commissions of Inquiry Act vide Gazette Notice 1566. The Rules range from (a) to (l). However for the purpose of the application it is only rule (i) which is relevant and the rule (i) reads!

“The commissioners may summon any person or persons to testify on Oath and may call for the production of books plans and documents that the commissioners may require”

It is contended that although the commission is just about to wind up its affairs after spending considerable amount of public funds, both the Commission and the commissioners have not summoned witnesses as required under s 3 3 a (ii) and 10. It is further contended that the rule formulated above is ultra vires these sections and also s 9 of the Act and that because of the alleged ultra vires or non compliance the commission which is ongoing would not be able to make a full, faithful and impartial inquiry to conduct the Inquiry in accordance with the directions contained in the commission as required under s 7 of the Commission of Inquiry Act Cap 102.

The applicants’ counsel has also drawn this court’s attention to the contents of the Oath of office for the Commissioners as required under s 5 of the Act. The court has been urged to note that the contents of the form of the Oath demands that the commissioners discharge and perform the duties entrusted to them by the commission. It is therefore important for us to reproduce here the form of the Oath made pursuant to the commission of Inquiry Regulations L N 217/1970. It is in these terms:-

“I ..... having been appointed a commissioner by a commission issued by the President under the Commission of Inquiry Act do swear that I will faithfully fully and impartially, and to the best of my ability, discharge the trust and perform the duties devolving upon me by virtue of the commission”

For the respondents no affidavit in reply was filed. Instead, grounds of opposition dated 8th November, 2004 were filed on 9th November, 2004. Strictly speaking the provisions of Order 53 dealing with judicial review do not contemplate the filing of grounds of opposition and this is a hangover from the civil procedure practice. This court would therefore have been entitled to ignore or disregard the filed grounds see R v COMMUNICATIONS COMMISSION OF KENYA [2001] EA 199. However, the learned counsel for the applicant after raising the point did point out to the court that in view of the importance of the subject matter of the application he would be happy if we took into account the grounds and ruled on merit. The grounds relied on are:-

1. THAT this honourable court lacks jurisdiction to grant an order of certiorari as prayed

2. THAT the order of prohibition sought if granted shall amount to correcting the course, practice and procedure of the Judicial Commission of Inquiry into the Goldenberg Affair as laid down by law

3. THAT the honourable court lacks power to compel the Judicial Commission of Inquiry into the Goldenberg Affair to summon witnesses as the Commission has a discretionary power

4. THAT anorder of mandamus cannot be issued against the 2nd, 3rd and 4th respondents in their individual capacities

5. THAT paragraph 7 of the supporting affidavit is preempting and subjudicial the proceedings of the Commission as the same shows that the deponent has already reached a decision on the sponsors, architects, facilitators and beneficiaries of the Goldenberg Affairs

6. The application is based on speculation and inconclusive proceedings of the 1st respondent

7. The 1st respondent has no powers to compel the named persons to testify before the commission of Inquiry

GROUND 1

The learned counsel for the respondents Mr Ombwayo did submit that this court cannot have jurisdiction to grant an order of certiorari because the offending rule was published on 24th March, 2003 which is more than one year ago and under Order 53 rules 2 and 7 provide that no application for relief can be entertained by the court outside the 6months limit imposed by these rules and also s 9 of the Law Reform Act. In addition the deponent of the Affidavit does not depone to matters of personal knowledge and also cites provisions of law and therefore inadmissible under O 18 of the Civil Procedure Rules.

On the other hand the applicants have strongly contended as follows:-

· That the rule (i) of the Rules formulated by the Inquiry contravenes the very commission establishing the Inquiry because the commission has directed the Inquiry in mandatory terms (as set out above) to summon witnesses. They contend that for this reason rule (i) is ultra vires the commission itself and is void ab initio. The Inquiry did not have the power to confer jurisdiction on itself to convert what is a mandatory duty under the terms of the commission itself into a discretionary duty.

For this reason this court has the jurisdiction and the duty to quash the nullity.

· That the Inquiry was obligated to include in its terms of reference the instructions contained in s 3 3 (a)(ii) of the Commission of Inquiry Act and that the Inquiry has not indicated anywhere in its record so far any reasons for departing from the instructions contained in s 3 3(a)(ii) of the Act which reads:

“that that the person shall be given such opportunity as is reasonable and practicable to be present, either in person or by his advocate, at the hearing of the evidence to cross-examine any witness testifying thereto,and to adduce without unreasonable delay material evidence in his behalf in refutation of or otherwise in relation to the evidence.”

It is contended that since the commission did not specifically exclude this instruction the Inquiry ought to have adhered to the instruction in executing the commission. It was contended that failure to adhere to this statutory instruction makes rule (i) ultra vires this particular provision and therefore the rule is null and void to the extent of the inconsistency.

· That this court has by virtue of s 60 of the Constitution unlimited jurisdiction to quash nullities notwithstanding any time limit because the Inquiry did not in the first place have jurisdiction to act in excess of its jurisdiction in the formulating rule (i). That this court would be abdicating its unfettered constitutional duty under the provisions of the Constitution – see RUSTIN SHALMON KITOLOLO v KENYA REVENUE

AUTHORITY HCCC 1969 OF 1996.

· That where an act or decision or publications is ultra vires the 6 months term stipulated for certiorari does not apply and that nullities or lack of jurisdiction is not covered by Order 53 rules 2 and 7. Order 53 rule 2 relied on by the respondents only applies to the specific matters mentioned. The marginal notes bear testimony to this.

· On the admissibility of the Affidavit Judicial review is a special jurisdiction and order 18 of the Civil Procedure Rules does not apply.

The Statement and the Affidavit constitute pleadings in judicial review

· That this court has inherent powers to strike down any ultra vires acts, decisions etc without any restriction and that it would be a constitutional heresy if this court were to shy away from facing head on illegalities and nullities and for this reason it should not allow its inherent powers from being fettered by restrictions based on time limits in the rules of procedure or in an Act of Parliament.

· That the decision making process invoking rule (i) is continuous and ongoing and that there cannot be a time bar in these circumstances.

– see TSIKATA v NEWSPAPER PUBLISHING PLC (1997) I ALL ER 655.

GROUND 2

The argument for this is that prohibition would interfere with the course, practice and procedure of the Inquiry and that this is not the business of the court and therefore no order of prohibition should issue. It was also submitted that if certiorari does not lie prohibition should also not issue for the same reason, that is lack of jurisdiction and that prohibition cannot survive on its own.

· The counterargument on this is that the court has jurisdiction to grant both orders of certiorari and prohibition since it is necessary for the Inquiry to put in place before it closes its public hearings the correct procedure which would enable it to summon the witnesses in the manner set out in the commission, s 3(3) (a) ii, s 7, s 9 and s 10 of the Commission of Inquiry Act. And that the only way of ensuring compliance is to grant orders of certiorari, prohibition and mandamus.

Reliance on grounds 1 and 2 was placed on the decision of the Court of Appeal in C A 266/1996 R v EXAMINATIONS COUNCIL ex-parte NJOROGE AND 9 OTHERS certiorari looks to the past and prohibition to the future but the facts in the matter before us are different from the EXAMINATIONS COUNCIL case because in that case there was no prayer for certiorari.

Here there are prayers for certiorari prohibition and mandamus.

· Indeed on the contrary the KENYA EXA;MAINATIONS COUNCIL CASE fully supports the applicants case. At page 1 the following appears

“As a creature of statute, the Council can only do that which its creator (the Act and the rules made hereunder permit it to do. If it were to purport to do anything outside that which the Act empowers it to do then like all public bodies created by Parliament it would become amenable to the supervisory jurisdiction of the High Court.”

GROUND 3

The argument here is that s 10 of the Commission of Inquiry Act although worded in mandatory terms by the use of the words “shall” is in fact directory only. The reason for this is that although the commissioners have been given the powers to summon witnesses they need not do so in every case and the section does confer a discretion on them on whether or not to summons witnesses.

· Against this contention is that s 3 spells out clearly that every commissionshall direct how the commission shall be executed and the commission has so directed

· Against this argument as well is that s 7 of the Commissions of Inquiry Act which demands in mandatory terms that it shall be the duty of the commissioners, after making and subscribing to the prescribed oath, to make a full, faithful and impartial inquiry the matter into which it is commissioned to inquire to conduct the inquiry in accordance with the directions contained in the commission

· Also this ground flies in the face of section 9 of the Act which mandatorily demands that a commission or commissioner if more than one may make rulesnot inconsistent with any regulations made under s 19 orwith the terms of the commission for the conduct and management of the proceedings of the Inquiry.

· the ground also contravenes the terms of the oath prescribed under s 5 and the regulations made under the Act as set out above and which also demand that the commission discharge the trust and perform the duties devolving upon them by virtue of thecommission

· This ground also fails or dissolves in view of the clear wording of s 10, when read together with the invocation of the section by the President when he spelt out the duties of the commission in terms that they shall summon witnesses. Indeed, out of the instructions contained in the Act this is the only duty which is specifically spelt out in the commission and it is not coached in discretionary terms but it is set out in mandatory terms.

GROUND 4

Although the Inquiry is entitled the Judicial Commission of Inquiry into the Goldenberg Affair it is clear from the President’s commission that the statutory duty in terms of the commission and the Act falls on the named Commissioners and they have been so described in these proceedings.

· The argument against this ground is that the Commission itself and the Act which clearly recognizes their individual capacity and a mandamus order would issue for any non performance by the Commissioners of the statutory duty. Moreover this is not the first time the Inquiry and its Commissioners have been sued. We are happy that the respondents counsel upon further reflection did concede this ground.

GROUND 5

The contention is that the Inquiry is still ongoing and no conclusion or decisions have been made yet on the sponsors, architects facilitator and beneficiaries of the Goldenberg Affair.

· The applicants have relied on what they consider to be their opinion on the involvement of the concerned persons so far and the

Inquiry’s failure to summon them the weight of evidence against any individual is for the Inquiry alone including the identity of the concerned persons and not the functions of this court. And this court will not name or identify anyone. This is the function of the Inquiry

· there is merit in this contention because this court’s supervisory jurisdiction is based on the decision making process and not the decision itself or the merits of it.

· the identity of whom to call or summon and when to summon is clearly the function of the Inquiry alone. However in so far as Inquiry has sent out adverse notices there is a responsibility to go one step further under s 3 3(a) ii of the Act as set out above.

GROUND 6

The contention here is that the applicants are speculating since the proceedings are still inconclusive and the Inquiry has yet to wind up

· yes there is an element of speculation to the extent that the proceedings have not been concluded but on the other hand the fears expressed in the affidavit cannot be said to be unreasonable if no witness summons in terms of the commission have been issued in the Inquiry’s over 280 days.

· If the Inquiry decisions on witnesses so far have been influenced by rule (i) and it turns out to have been ultra vires and void there is clearly an impropriety of procedure from the beginning and the challenge to correct the procedure cannot be said to be speculation

· Moreover any threatened or real conclusion of the proceedings could pose a serious legal challenge to the commission’s work and jurisdiction – thereby paving way to a possible legal challenge to the final report – resulting in an incredible loss of millions of public funds used to sponsor the inquiry, lack of public confidence in the Inquiry and the failure to uphold the public interest which was invoked to have the Commission set up and on which its jurisdiction was anchored in terms of s 3 of the Act.

GROUND 7

The Judicial Commission of Inquiry into the Goldenberg Affair is not a corporate body recognized by the Commissions of Inquiry Act and therefore cannot compel the named persons to testify for the reason that the power to summon is vested in the Commissioners under s 3,7,9,10 and the commission itself.

· The Inquiry has been joined to emphasise that there is nothing personal and although the other respondents are sued as individual commissioners they do operate under the impersonal name given to the commission as per the terms of the commission.

· There is apparent merit in this ground because the summons are required under the Act to be issued and signed by the commissioners.

However for the purposes of clarity the impersonal name used in the commission has to be used in order to direct the witnesses to the right commission and place.

The merit of this ground melts away because of the authority cited by the applicants counsel ie ROYAL COMMISSION AND BOARDS OF INQUIRY by Hallett at page 285 where he cited the following :-

“It is clear that writs will issue against individual officers discharging public functions and against persons appointed in pursuance of prerogative power. So whether commissions and Boards are appointed in pursuance of the prerogative it is immaterial for the purpose as they are both clearly comprised of persons discharging public functions”

The merit also evaporates in view of the findings in the JOB KILACH v JUDICIAL COMMISSION OF INQUIRY INTO THE GOLDENBERG AFFAIR & 3 OTHERS which is discussed here below.

In the course of the submissions the learned counsel for the respondents argued that since s 10 confers on the commissioners the power to summon witnesses as is currently vested in the High Court this court does not have the power to supervise this aspect of the Inquiry because these are powers of the High Court and the High Court cannot supervise itself.

· The right to supervise the inferior Courts and Tribunals including Commissions of Inquiry is vested in the High Court because it is a higher court in terms of hierarchy. The jurisdiction is clearly based on the High Court’s higher hierarchy and is not based on any one aspect of the power being exercised provided valid grounds exist for the availability of the judicial orders of certiorari, prohibition and mandamus

· It is not in dispute that the Inquiry is an inferior body to the High Court

· Moreover this Inquiry has in the course of its proceedings attracted past litigation both in the High Court and the Court of Appeal in CA 77/2003 JOB KILACH v JUDICIAL COMMISSION OF INQUIRY INTO THE GOLDENBERG AFFAIR & 3 OTHERS where the Court of Appeal observed

“It was largely agreed before me that a Commission such as the 1st respondent is a tribunal inferior to the High Court and as such amenable to judicial review jurisdiction of the High Court and hence to the Court of Appeal. The High Court would be entitled to give it directions and when the matter comes to us as it has come we are entitled to give it directions.”

FINDINGS, HOLDINGS AND DETERMINATIONS

1. A careful scrutiny of s 9 of the Law Reform Act, pursuant to which Order 53 Rules were made and in particular rules 2 and 7 which it is contended denies this court jurisdiction to grant or give the orders of certiorari outside 6 months reveals that only formal judgments, orders, decrees, conviction or other proceedings of an inferior court or Tribunal fall within the six months period stipulated see Order 53 rule.

2. The act of publishing a rule cannot be said to be a proceeding or any of the orders mentioned in O 53 rule2. Neither is the decision to formulate the rule a proceeding, judgment, order, decree or a conviction.

Order 53 rule 2 which prescribes the time limit does not also include anything covered by the principle of ultra vires or any nullities or decisions made without jurisdiction at all.

It is therefore clear that this court’s jurisdiction or power is not fettered or ousted by Rule 2.

Order 53 rule 2 reads:-

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act, and where the proceeding is subject to appeal and time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

a) The position is made even clearer by Order 53 rule 7 which requires

“that where an order of certiorari to remove any proceedings for the purpose of their being quashed the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion, he has lodged a copy thereof verified by affidavit with the Registrar or accounts for his failure to do so to the satisfaction of the High Court” Under 7 (2) it provides “where an order of certiorari is made in any such case as aforesaid the order shall direct that the proceedings shall be quashed forthwith on the removal into the High Court”

We agree with the applicants’ counsel that this rule only covers the specific matters mentioned and the marginal notes clearly say so. In the view of the court the six months limitation only affects the specific formal orders mentioned and nothing else. The act of making an ultra vires rule is outside the limitation. Purely on the literal reading and interpretation of the above provisions a rule formulated by a commission falls outside the rules and is therefore in the opinion of the court not covered by the six months limitation. In fact even s 9 of the Law Reform Act a discretion is conferred on the rule making authority to impose the six months time limitation and it need not have been couched in mandatory terms.

In addition if rule (i) is ultra vires the commission and the Act as shall appear shortly it is void ab initio and of no effect see DPP v HUTCHINGS [1990] AC 783 House of Lords, where Lord Lowry stressed this important point of principle:

“The basic principle is that an ultra vires enactment, such as a byelaw, is void ab initio and of no effect.”

We also apply the maxim ex nihilo nihil fit – “out of nothing comes nothing”.

We hold that nullities are not covered by the six months limitation both on the wording of the rules and as a matter of principle due to the nature of nullities. We further hold in line with GITHUNGURI v REPUBLIC [1986] KLR 1 that this court has inherent powers to exercise jurisdiction over tribunals and individuals acting in a administrative or quasi judicial capacity and we would invoke this jurisdiction to quash, nullities and illegalities.

3. Indeed as early as 1928 the English High Court whose powers this court also enjoys by virtue of s 8 of the Law Reform Act and the Administration of Justice Act 1938 (UK) the High Court in England was able to quash a medical certificate pursuant to its judicial review Jurisdiction in the case of THE KING v POSTMASTER GENERAL I KB 291. A medical certificate is not one of the specified matters in rules 2 and 7 above.

At page 600-601 of the WADES ADMINISTRATIVE LAW 8th Edition the learned author has described the expansion of the remedy of certiorari in these words:

“As the law has developed, certiorari and prohibition have become general remedies which may be granted in respect of any decisive exercise of discretion by an authority having public functions whether individual or collective. The matter in question may be an act rather than a legal decision or determination such as the grant or refusal of a license, the making of a rating list on wrong principles, the taking over of a school ...

They will lie where there is some [preliminary decision ... The question is whether some issue is being determined to some person’s prejudice and the courts ability to intervene has been increased by the new doctrine that decisions which are wholly non statutory may nevertheless be reviewable whenever there is a ‘public element.’”

Yet many cases of judicial review necessarily turn upon the legality of acts as opposed to decisions.

” At pages 603 and 604 (supra) the following is brought out clearly:

“However null and void a decision may be there is no means established except by asking the court to say so. Lord Dennings successor pointed this out very clearly in the case of the Takeover Panel ... If for example a licensing authority refuses a licence for wrong reasons or in breach of natural justice so that its decision is ultra vires and void nothing will avail the applicant except a judicial decision quashing the refusal and ordering a proper determination” see LONDON & CLYDESIDE ESTATES v ABERDEEN DC (1980) I WLR 182 AT 189.

It follows therefore the legality of acts or decisions including nullities goes beyond the provision of Order 53 rule 2 and 7 (above) yet the High Court in England has the jurisdiction to grant orders of certiorari and prohibition. We think we have the same powers and even more because we have in addition powers under a written Constitution.

In the English case of SMITH ELLOE RDC [1956] AC 736 it was suggested that an Order that is [patently ultra vires may be impugned outside the six week limitation see also R v SECRETARY OF STATE FOR ENVIRONMENT ex parte 1977 QB 122

We find that it would be serious abdication of jurisdiction and powers of this court if we were to shy away from quashing a nullity because in essence the doctrine of ultra virespermits the courts to strike down decisions or acts made or done by bodies exercising public functions which they have no power to make. The courts have a specific mission and a duty to uphold the rule of law. Indeed the doctrine of ultra vires was one of the original pillars upon which judicial review was founded.

4. In the context of an on going Commission of Inquiry such a body can be compelled by an order of mandamus to perform its statutory duties. The decision to summon or not to summon witnesses is being made every other day by the commission as the Inquiry proceeds and the authority of such a decision based on an invalid rule cannot reasonably have a time limit especially where an aggrieved applicant moves the court for a remedy in the course of a public Inquiry’s proceedings and before their closure.

5. We find that the summoning or not summoning of witness is a matter that goes or touches in a big way the mandate or the jurisdiction of the Inquiry and therefore no exclusion clause whether procedural or statutory can oust the jurisdiction of this court. Failure to perform an essential preliminary such as summoning witnesses who are concerned goes to jurisdiction and exclusion terms would not be available where there is lack of jurisdiction or excess of jurisdiction and this court must determine the matter. In this case the respondents counsel has admitted that the ten concerned persons have been served with adverse notices and surely s 3 3(a) ii demands that the Inquiry complies with the entire provisions in respect of such persons.

In the celebrated case of ANIMISTIC v FOREIGN COMPENSATION 1969 2 AC 147 Lord Diplock M R in his well known obiter in O RELLY v MACKMAN referred to ANISMINIC as

“A landmark decision which has liberated English public law from the fetters that the courts had theretofore imposed on themselves so far as determinations of inferior courts and statutory tribunals were concerned by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction and errors of law committed by them within their jurisdiction. The break through that Anisminic made was the recognition by the majority of this House that if a tribunal ... mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie One into which it was not empowered to inquire and so had no jurisdiction to determine its purported determination” not being a “determination” within the meaning of the empowering legislation was accordingly a nullity.”

We therefore find that in law if a prescription is mandatory and it is not done what is done is invalid and if the prescription is directory, disobedience may be treated as an irregularity not affecting validity.

6. Under the Constitution s 60 we have original and unlimited jurisdiction to deal with illegalities and in addition we have inherent jurisdiction to nullify and quash them. Any statute or rule that purports to take that jurisdiction away or is inconsistent with that jurisdiction is void to the extent of the inconsistency under s 3 of the Constitution of Kenya and it would be abdication of this court’s powers to impose on itself any fetters not imposed by the Constitution itself.

This court’s jurisdiction must as stipulated in the Judicature Act, be exercised in this order:-

(1) in accordance with the Constitution

(2) written laws

(3) Doctrines of common law and equity as at 12th August 1897

7. SCOPE OF JUDICIAL ORDERS. At page 17 of ADMINISTRATIVE LAW BY WADE 8th Edition the scope of judicial review is stated to be: “By obtaining orders of the court in the form of mandamus certiorari or prohibition the Crown (read Republic) could ensure that public authorities carried out their duties and that inferior tribunals kept within their jurisdiction. They were essentially remedies of ensuring efficiency and maintaining order in the hierarchy of courts, commissions and authorities of all of all kinds.”

This Inquiry had a duty under the law to issue summons to the concerned persons. The Inquiry’s discretion ceased when they issued the adverse notices.

On the strength of 1 to 5 above (either singly or cumulatively) we do find that we have jurisdiction to grant any deserved judicial review orders and accordingly find that:-

8. Rule (i) of the Inquiry’s Rules and Procedure violates the mandatory terms in the commission as set out above and which clearly states:

“I do direct that in accordance with the provisions of section 10(1) of the said Act, the Commissioner shall summon any person or persons concerned.”

We further find that the persons concerned must be those with adverse notices as per the Inquiry findings so far.

Rule (i) also violates the instructions contained in s 3 (3)(a) ii unless the proviso is applicable and in a contentious Inquiry such as the Goldenberg it would be difficult to reasonably and fairly bring itself within the exception and in any event no record has been shown to us that there exists any good reasons on the Inquiry’s record. Under s 3(3) the Act has directed in mandatory terms how the commission shall be executedin terms of summoning the persons concerned.

We therefore find that the Inquiry did not have the power to make rule (i) in discretionary terms and had no jurisdiction to make the rule in those terms at all and the rule is ultra vires the commission and the Act. With great respect the Inquiry which is a creature of the commission does not appear to have directed their mind to the terms of the commission (their creator) on summoning witnesses and this power appears in the very body of the appointing commission. We find that rule (i) is ultra vires the commission and s 3 3(a)(ii) of the Act.

Under s 7 the Inquiry is specifically and statutorily required to conduct the Inquiry in accordance with the directions contained in the commission. There is a mandatory direction in the commission itself to summon witnesses and which the Inquiry has clearly ignored its own commission.

The underlined words appear in this section and therefore rule (i) is ultra vires s 7 as well. The Inquiry cannot deviate from clear and specific provisions of the commission itself and the Act.

Similarly rule (i) is also in direct conflict with s 9 of the Commission of Inquiry Act which reads in part as under:

“A Commission (or commissioners, if more than one) may make such rules, not inconsistent with any regulations made under s 19 or with the terms of the commission for the conduct and management of the proceedings of the inquiry ...

In addition the Oath prescribed under s 19 and the Regulations made thereunder states that the Commissioners will faithfullyfully andimpartially and to the best of their ability discharge the trust and perform the duties devolving upon them by virtue of that commission. The president clearly invoked the provision of s 10 when ordering the mandatory summoning of the concerned persons. This appears in the commission itself. Rule (i) therefore violates s 10 of the Commission of Inquiry Act and is ultra vires this section as well. Under s 10 the Commissioners have mandatory duty to summon those who in their opinion are concerned persons. This court would not be interfering with their mandate because they have already formed opinions and issued adverse notices. We as a court do not have to name names. S 10 (2) provides that all summons for the attendance of witnesses or other persons ... shall be in the prescribed form and shall be signed by the commissioners or by one of the Commissioners if more than one.

STATEMENTS AND AFFIDAVIT EVIDENCE

The Commission of Inquiry by virtue of serving adverse notices on some of the persons has specifically applied to itself the direction contained in s 3 3 (a) ii. For this reason we find and hold that the inquiry cannot validly receive or admit statements of evidence – from witnesses. Section 10 makes it plainly clear that the only exception to receiving oral evidence is the one set out in s 10 (3) where for the reasons set out therein and for sufficient reason to be recorded in the Inquiry the Commission may receive affidavit evidence.

It is therefore outside the ambit of the commission to purport to receive any statements from witnesses.

The respondents did not file any affidavit to demonstrate compliance with this provision for example by exhibiting any summons issued or samples of the summonses issued or to be issued. Since no form of summons have been prescribed or made thereunder and in view of the provisions of section 10 of the Act the commissioners have the powers of the High Court and we find that the summons must be those which the High Court issues under its Criminal or Civil jurisdiction whichever is suitable to the persons concerned. It is not lost to us that in the case concerning the AKIWUMI REPORT, R v ATTORNEY GENERAL ex parte Biwott, (2000) KLR 668 the ultimate report was successfully challenged before a constitutional court of three also for failure to summon the applicant who was adversely affected.

We are aware that this court in exercise of its judicial review jurisdiction does not and should not sit on appeal of the decisions of the challenged bodies such as this Inquiry. Our concern as a court is in the decision making process see R v JUDICIAL SERVICE COMMISSION ex parte PETER STEPHEN S PARENO, Misc Civil Application No 1025 of 2003.

We find that rule (i) is ultra vires the commission and the specified sections of the Act as outlined above. It is for this reasons null and void ab initio having been formulated in excess of jurisdiction. We find that this is a serious procedural impropriety which could if not rectified touch on the Inquiry’s work jurisdiction and the ultimate report. We would also like to observe that the appointment of the Inquiry was anchored on the upholding the public interest in the subject matter of the Inquiry and the public interest is clearly the identification and prosecution of those concerned including the recovery of the billions involved. This court has a duty and responsibility to uphold that interest, the court being the last frontier in upholding the rule of law and the public interest. We are aware that substantial funds and effort have already been expended on the Inquiry so far, but no price is greater than upholding the rule of law and the public interest. Those involved can only achieve this by getting everything right and beyond legal challenge. We see no shortcuts in advancing this. We are of course aware that we do not sit on appeal of any decision of the Inquiry but are only concerned with the decision making process and any procedural impropriety.

We are of the view that the procedural impropriety herein could seriously affect the jurisdiction of the Inquiry and we see immediate need for all concerned to rise to the occasion and put things right in order to uphold the considerable public interest on which the Inquiry was initially anchored and also securethe ultimate report from challenge.

For the above reasons Orders shall immediately issue as under:

1) Order of certiorari removing Rule (i) of the Rules and Procedures as published in the Gazette Notice No 1566 of 14th March, 2003 to this court, which is hereby and forthwith quashed. We further hold that the rule is a nullity and void ab initio.

2) Order of prohibition to prohibit the respondents from presenting the inquiry report to the President until the concerned persons have been issued and served with the summons and the commissioners fully comply with the orders herein.

3) An Order of mandamus to compel the respondents to perform their statutory duty by issuing and serving summons on the concerned persons as stipulated in the commission and sections 3 3 a(ii), s 7, s 9 and s 10 of the Commissions of Inquiry Act chapter 102 of the Laws of Kenya.

This order shall remain in force until full compliance with the Commission’s statutory duty described in the provisions herein and in particular with the provisions of s 3 (3) (a) ii of the Commission of Inquiry Act. Pursuant to this order and the order of this court made in Misc 1608/04 on 25th November, 2004 we order that proceedings of the Inquiry shall not close and shall be deemed to be open for the purposes of complying with all the orders made in this judgment.

4) The costs of these proceedings shall follow the event and are awarded to the applicants.

It is so ordered.

DATED and delivered at Nairobi this 26th day of November, 2004

J G NYAMU

JUDGE

M IBRAHIM

JUDGE

M MAKHANDIA

AG JUDGE