[2018] KESC 38 (KLR)

Wamwere v Attorney General (Application 15 of 2015) [2018] KESC 38 (KLR) (13 April 2018) (Ruling)

Koigi Wa Wamwere v Attorney General [2018] eKLR

Neutral citation: [2018] KESC 38 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application 15 of 2015

DK Maraga, CJ & P, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

April 13, 2018

Between

Koigi Wa Wamwere

Applicant

and

The Attorney General

Respondent

(Being an Application seeking leave to appeal against the Court of Appeal Ruling in Civil Application No. Sup 4 of 2015 (UR 3/2015 at Nairobi [Mwera, Mwilu & Otieno-Odek JJA] dated 3rd July 2015) to the Supreme Court under Article 163 (4)(b) of the Constitution of Kenya 2010 & Sections 15 & 16 (1) of the Supreme Court Act 2011 and part 4 Rule 26(1) of the Supreme Court Rules and all enabling provisions of the law Civil Application Sup 4 of 2015 )

Ruling

1. Upon perusing the Notice of Motion dated and filed on 22nd July, 2015, which application is brought under Article 163 (4) (b) of the Constitution; Section 15 & 16(1) of the Supreme Court Act 2011 and Part 4 Rule 26(1) of the Supreme Court Rules and all enabling provisions of the law; seeking leave to appeal against part of the Judgment of the Court of Appeal which granted certification but limited the questions for consideration and determination by the Supreme Court to two; and

2. Upon reading the supporting affidavit of Koigi Wa Wamwere dated 22nd July, 2015, together with the written submissions dated 2nd September, 2015 in support thereof; and the Attorney General’s submissions dated 4th November, 2015 in opposition thereto;

3. The applicant’s case is that a miscarriage of justice will occur on grounds that by limiting the questions for determination to only two, the Court of Appeal has excluded 16 other questions of general public importance.

4. The applicant urges that his case satisfies the criteria set out in Hermanus Phillipus Steyn & Giovanni Gnecchi Ruscone Sup Ct. App No. 4 of 2012 (Hermanus) and should be heard by this Court. It is the applicant’s further contention that the Court of Appeal cannot purport to set out two new grounds which he deems irrelevant to his intended appeal to the Supreme Court.

5. The respondent opposes the application on the ground that, it does not fall within the ambit of Article 163(4) (b) of the Constitution. The respondent also relies upon the Hermanus case. It is the respondent’s case that the Supreme Court is being asked to indirectly enhance the quantum of damages payable which is against the doctrine in Hermanus. Finally, the respondent submits that, the question of the constitutionality or otherwise of the two stints of the applicant’s detention, was not a substantive issue dealt with by the two superior Courts.

6. Having considered these submissions, by a unanimous decision of this Bench, we make the following Orders under Article 163 (5) of the Constitution, and Rules 23 and 24 of the Supreme Court Rules 2012 (as amended).Orders Reasons

The Notice of Motion dated 22nd July, 2015 is hereby dismissed with costs in the cause. (a) No compelling reasons have been presented to the Court so as to warrant a review of the grant of certification by the Court of Appeal.(b) The application as framed, goes beyond the ambit of Article 163 (4) (b) of the Constitution and is in fact, a full blown appeal, as if the application for review herein, had been granted.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF APRIL, 2018. .....................D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT...............................J. B. OJWANGJUSTICE OF THE SUPREME COURT..............................S. C. WANAJLAJUSTICE OF THE SUPREME COURT..............................N. S. NDUNGUJUSTICE OF THE SUPREME COURT..............................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA