Kiriro Wa Ngugi, Michael Mugo, Simon Lokoma, Edward Onyango Omondi, Isaac Maina Mureithi, Sammy Kibet, Peter Gitahi Migwi, Aytso Caroline Nyarunda, Cyprian Kimeu, Barsilio Irungu Njoroge, Frank Muhoro Kamau, Raphael Ngulat, Philip Simiyu Malomba, Daniel Mburu Mungai, Samuel Kamau Mwangi, Freddie Jonathan Masha, Michael Sigei, Winnie Kisalanwa, James Kinuthia Gathumbi & Foundation For Dialogue Limited v Attorney General, Cabinet Secretary, Foreign Affairs & Kenya International Boundaries Office [2019] KEHC 11485 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 254 OF 2019

KIRIRO WA NGUGI……………….....……………………………...1ST PETITIONER

DR. MICHAEL MUGO…………......………………………………..2ND PETITIONER

PASTOR SIMON LOKOMA……….....……………………………..3RD PETITIONER

EDWARD ONYANGO OMONDI….......…………………………….4TH PETITIONER

ISAAC MAINA MUREITHI………...……………………………….5TH PETITIONER

DR. SAMMY KIBET………………...……………………………….6TH PETITIONER

PETER GITAHI MIGWI……………..………………………………7TH PETITIONER

AYTSO CAROLINE NYARUNDA………....………………………..8TH PETITIONER

CYPRIAN KIMEU… ………………....……………………………...9TH PETITIONER

BARSILIO IRUNGU NJOROGE….. …....………………………...10TH PETITIONER

FRANK MUHORO KAMAU…………....………………………….11TH PETITIONER

RAPHAEL NGULAT…………………....…………………………..12TH PETITIONER

PHILIP SIMIYU MALOMBA………….………………………….13TH PETITIONER

DANIEL MBURU MUNGAI……………...………………………..14TH PETITIONER

SAMUEL KAMAU MWANGI………….....………………………..15TH PETITIONER

FREDDIE JONATHAN MASHA…………....……………………...16TH PETITIONER

MICHAEL SIGEI…………………………....………………………17TH PETITIONER

WINNIE KISALANWA……………………....……………………..18TH PETITIONER

DR. JAMES KINUTHIA GATHUMBI……………..………………19TH PETITIONER

FOUNDATION FOR DIALOGUE LIMITED ……………………20TH PETITIONER

VERSUS

THE ATTORNEY GENERAL……....……………………………….1ST RESPONDENT

THE CABINET SECRETARY, FOREIGN AFFAIRS….…………2ND RESPONDENT

THE KENYA INTERNATIONAL BOUNDARIES OFFICE.…….3RD RESPONDENT

RULING

1. The twenty petitioners led by Kiriro Wa Ngugi are through the Notice of Motion application dated 27th June, 2019 seeking orders as follows:-

“i.  (spent)

ii. That this Honourable Court be pleased to issue a conservatory order of injunction restraining the Respondents from further participation in the proceedings in the Maritime Delimitation in the Indian Ocean (Somalia v Kenya) case at the International Court of Justice, pending the hearing and determination of this Application/Petition.

iii. That pending hearing and determination of this petition this Honourable Court be pleased to issue a conservatory order restraining the respondents from taking any measures or decisions that will alter or in any way interfere with the territory or territorial waters comprising Kenya as at 27th August, 2010.

iv. That the Honourable Court be pleased to certify that this matter raises substantial questions of law and therefore should be heard by a bench of at least five judges appointed by the Honourable Chief Justice.

v. That on account of the pending hearing of the Somalia vs. Kenya Maritime dispute before the International Court of Justice in September, 2019, the Honourable Court be pleased to issue such orders and directions to ensure this Petition is heard and determined by 31st August, 2019.

vi. That the costs of this application be provided for.”

2. The application is supported by the grounds on its face and the affidavits sworn on 27th June, 2019 by Kiriro Wa Ngugi (the 1st Petitioner and Dr. Michael Mugo (the 2nd Petitioner) in support of the application.

3. The Attorney General, Cabinet Secretary for Foreign Affairs and the Kenya International Boundaries Office being the 1st to 3rd respondents respectively have opposed the application.

4. A perusal of the application discloses two distinct prayers.  One set of prayers seek to stop the respondents from further participation in the proceedings before the International Court of Justice in the Maritime Delimitation in the Indian Ocean case between Somalia and Kenya pending the hearing and determination of the petition.

5. The other prayer seeks a certification that this “matter raises substantial questions of law and therefore should be heard by a bench of at least five judges appointed by the Honourable Chief Justice”.

6. Common sense requires that I first consider the application for certification under Article 165(4) of the Constitution.  Article 165(4) provides that:-

“(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.”

7. It is clear from a reading of the cited provision that the much the court can do is to certify that a matter raises a substantial question of law making it necessary for the same to be “heard by an uneven number of judges, being not less than three.” The decision on the number of judges to hear a certified matter and the appointment of the judges to hear a matter so certified belongs to the Chief Justice.  The request by the petitioners that not less than five judges should hear the matter, if certified as raising substantial questions of law, therefore fails even before the arguments for or against certification are considered.

8. As for the application for certification, counsel for the Petitioner submitted that the petition raises weighty issues that requires discussion and interrogation by a panel of judges before a decision can be reached.

9. The respondents were, however, of the view that there is nothing novel in the matter to warrant the constitution of a bench of judges to hear the petition.

10. Through their written submissions dated 3rd July, 2019 the petitioners in urging the court to certify this matter as raising substantial questions of law identified the issues for determination in these proceedings as follows:-

“(i) The procedure and manner of alteration of Kenya’s territory;

(ii) The import of judicial proceedings in an international court whose probable outcome may violate the Constitution;

(iii) The constitutionality of participation in judicial proceedings at an international court, when the objective of the said proceedings violates the Constitution;

(iv) The constitutionality of participation in judicial proceedings at an international court in instances where the said international court has assumed jurisdiction beyond the consent expressed by Kenya to the said jurisdiction;

(v) The course of action to be followed by the Respondents, in light of their constitutional obligation to safeguard Kenya’s sovereignty and the supremacy of the Constitution, when faced with proceedings in an international court where the international court has assumed jurisdiction against Kenya’s consent and in circumstances that violate the Constitution of Kenya.”

11. Counsel for the petitioners cited the decision of Odunga, J in Judicial Service Commission v Speaker of the National Assembly and another [2013] eKLR as enumerating the circumstances under which certification can be made under Article 165(4) of the Constitution. It is the petitioners’ case therefore that considering the issues raised in their petition, this is a matter that requires certification.

12. In response to the prayer for certification, the respondents through their submissions dated 2nd July, 2019 urged the court to find that the petition does not raise any substantial question of law to warrant such certification.  Counsel urged the court to agree with the decision in Judicial Service Commission v National Assembly & 2 others [2017] eKLR that the empaneling of a bench of an uneven number of judges is not a right, but a matter of judicial discretion that ought to be exercised only when absolutely necessary.

13. Counsel for the respondents urged this court to follow the decision in Harrison Kinyanjui v Attorney General & another [2012] eKLR where it was held that:-

“Therefore, giving meaning to “substantial question” must take into account the provisions of the Constitution as a whole and need to dispense justice without delay particularly given a specific fact situation. In other words, each case must be considered on its merits by the judge certifying the matter. It must also be remembered that each High Court judge, has authority underArticle 165of the Constitution, to determine any matter that is within the jurisdiction of the High Court. Further, and notwithstanding the provisions ofArticle 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.”

14. According to counsel for the respondents, the place of international law in Kenya is well-settled and it provides that the general rules of international law and any treaties and conventions which Kenya has ratified are part of the law of Kenya, to the extent that the same do not contradict the Constitution.  Counsel therefore submits that there is nothing new in the petition.

15. It is the position of counsel for the respondents that this petition does not raise any substantial issue as it generally attempts to impugn the respondents’ participation in the ICJ proceedings on the grounds that this is unconstitutional. The respondents therefore submit that the petition cannot be said to raise a substantial question of law given that the law on the issue raised is well-settled.

16. Still urging the court to reject the application for certification, counsel for the respondents submitted that there is no qualitative distinction between decisions rendered by a single judge and those rendered by an uneven number of judges.  Reference was made to the decision in Peter Nganga Muiruri v Credit bank Limited & 2 others [2008] eKLR in support of the assertion.

17. The final reason given by the respondents, as to why the application for empanelment should not be allowed, is that such a step poses the risk of delaying the resolution of this matter.  Such delay, the respondents submitted is likely to prejudice Kenya’s case at the International Court of Justice which has been fixed for oral hearings from 9th to 13th September, 2019.

18. The question as to whether a matter should be certified for purposes of empanelment of a bench by the Chief Justice has received the attention of the courts in various matters. In Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR, Odunga, J correctly observed that the circumstances under which certification can be made are as follows:-

“ 29. From the foregoing it is clear that Article 165(4) of the Constitution permits the constitution of bench of more than one High Court judge where the Judge certifies that the matter raises a substantial question of law:

1. Whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; or

2. That it involves a question respecting the interpretation of this Constitution and under this is included (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. ”

19. In the instant petition, the petitioners seek an interpretation of the Constitution in respect of an alleged clash between the Constitution and treaties and conventions which Kenya has ratified.  On that ground alone, the petition meets the first criteria for certification.

20. The Court of Appeal laid down the principles for certification under Article 165(4) of the Constitution in the case of Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR; Civil Appeal No. 4 of 2015 where it held that:-

“42. There are, in our view, parallels to be drawn between certification for purposes Article 163(4)(b) of the Constitution and certification for purposes of Article 165(4) notwithstanding that the drafters of the Constitution, in providing for certification of matters for purposes of appeal to the Supreme Court under Article 163(4)(b) stipulated that a matter should be of “general public importance”, The word, “substantial” in its ordinary meaning, means “of considerable importance”[2]. There is therefore wisdom to be gained from the pronouncements of the Supreme Court of Kenya respecting interpretation of Article 163(4)(b). InHermanus Phillipus Steyn v Giovanni Gnechi-Ruscone [2013] eKLRthe Supreme Court of Kenya pronounced governing principles for purposes of certification under Article 163(4)(b) some of which are relevant in the context of certification under Article 165(4). Drawing therefrom, we adopt, with modification, the following principles:

“(i) For a case to be certified as one involving a substantial point of law, the intending applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest;

(ii) The applicant must show that there is a state of uncertainty in the law;

(iii) The matter to be certified must fall within the terms of Article 165 (3)(b) or (d) of the Constitution;

(vi) The applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.”

21. Applying the said principles I find that the petition herein raises a substantial point of law in that the issues raised will not only affect the parties before the court but will have a significant bearing on the interests of Kenya and Kenyans both locally and internationally. The resolution of this matter will affect how Kenya relates with its neighbours and the comity of nations.

22. As already stated the matter falls within the terms of Article 165(3)(d) of the Constitution as it calls for the interpretation of the Constitution.

23. The issues raised by the petitioners are novel and I am not aware that there is local case law on the identified issues.  The petitioners have clearly identified and set out the issues they want the panel of judges to determine.

24. Considering what I have stated, it follows that this is a matter that is fit and proper for certification under Article 165(4) of the Constitution.  I therefore direct the Deputy Registrar of the Constitutional and Human Rights Division to forthwith place this matter before the Chief Justice for consideration for empanelment of a bench of not less than three judges to hear and determine the petition.

25. Having certified the matter as requiring empanelment of a bench of an odd number of judges under Article 165(4) of the Constitution, it would be remiss of me to tie the hands of the panel of judges by proceeding to consider the application for conservatory orders.  It is noted that there will be sufficient time for the judges to be appointed by the Chief Justice to hear and determine the application and or the petition.  Further, I note that none of the parties will be prejudiced by my asking them to await the empanelment of a bench before any application can be heard.  I therefore decline to make any decision on the application for conservatory orders and reserve the application for the judges who will be appointed by the Chief Justice.

Dated, signed and delivered at Nairobi this 11th day of July, 2019.

W. Korir,

Judge of the High Court