Kirui v Clerk of the County Assembly of Uasin Gishu & another; Independent Electoral and Boundaries Commission (Interested Party) [2023] KEHC 25279 (KLR) | Composition Of County Assemblies | Esheria

Kirui v Clerk of the County Assembly of Uasin Gishu & another; Independent Electoral and Boundaries Commission (Interested Party) [2023] KEHC 25279 (KLR)

Full Case Text

Kirui v Clerk of the County Assembly of Uasin Gishu & another; Independent Electoral and Boundaries Commission (Interested Party) (Constitutional Petition E16 of 2023) [2023] KEHC 25279 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25279 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition E16 of 2023

JRA Wananda, J

November 10, 2023

Between

Kimutai Kirui

Petitioner

and

The Clerk Of The County Assembly Of Uasin Gishu

1st Respondent

The Speaker of the County Assembly of Uasin Gishu

2nd Respondent

and

The Independent Electoral And Boundaries Commission

Interested Party

Ruling

1. The Petition herein concerns the contention that the County Assembly of Uasin Gishu does not meet the requirements of the Constitution prescribing that at least 2/3 of the members thereof should not exceed one gender.

2. Now, before this Court is the Application brought by way of the Notice of Motion dated 19/10/2023 seeking the following Orders:i.[…………………]ii.An Order be and is hereby made that the Petition dated 2nd October, 2023 raises substantial questions of law under Clauses (3) (b) and (d) of Article 165 of The Constitution of Kenya.iii.The Petition and Application dated 2nd October, 2023 be and is hereby referred to the Chief Justice for assignment of an uneven number of Judges, being not less than three (3) pursuant to Article 165(4) of the constitution to hear it.iv.That the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders if granted.v.Costs of this Application be in the cause.

3. The Application is filed through Messrs Lumallas, Achieng & Kavere Advocates and is stated to be brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 165(3) and (4) and “all other enabling provisions of the law”. The Grounds of the Application are as set out on the face thereof and the same is supported by the Affidavit sworn by Eunice Lumallas, Counsel for the Petitioner.

4. In the Affidavit, Counsel deponed that the Petitioner moved the Court on grounds that the County Assembly of Uasin Gishu is not properly constituted since it does not meet the requirements set forth under the Constitution and therefore all its sitting, business transacted and decision made are null and void, the issues raised in the Petition rest at the heart of the Constitution of Kenya, 2010 and mostly touching on devolved governance.

5. She added that the Petitioner is seeking orders for a declaration that the County Assembly of Uasin Gishu is in contravention of Articles 2, 3, 10, 27, 177(1), 197(1) 27(3) of the Constitution, a declaration that the County Assembly of Uasin Gishu is unlawfully constituted, an Order do issue suspending all operations of the said County Assembly until it is constitutionally constituted, a declaration that all business transacted and decisions made by the said County Assembly on and after 1/09/2023 are null and void and an Order nullifying all parliamentary proceedings undertaken by the said County Assembly on and after 1/09/2023 including legislative work, approval of public officers and any work relating to the budget, expenditure and development plans for the County when the house was not constitutionally constituted.

6. Counsel deponed further that the issue to be canvassed is one the determination of which affects the parties and one of great public interest due to the inherent discrimination of certain marginalized members of the Uasin Gishu Community, the Petition is the kind that this Court should exercise its discretion in favour of an expanded bench due to its public importance and significance in our constitutional democracy, it is imperative that this matter be referred to the Chief Justice for assignment of an uneven number of Judges as it raises weighty and complex questions of law including the following:i.The extent and the limit to which a County Assembly can operate without requiring the constitutional threshold as per Article 177 of the Constitution of Kenya.ii.Whether business discussed in a County Assembly that is not duly constituted is a valid business.iii.To what extent is County government’s business and official functions including service delivery prejudiced for failure to have in place a duly constituted County assembly.iv.Whether a Court seized with jurisdiction can suspend a County Assembly not duly constituted until such time as it can be duly constituted.v.What measures can be taken by the Court, County Assembly relevant party to put in place measures to regularize the Composition.

7. Counsel further deponed that the issues sought to be decided are not mere questions of law, they are substantial questions of law and their resolution will have a material bearing on the said County Assembly composition and the measures to resolve the same, the issue is such that one Judge may not be able to adequately address as it is potentially precedent setting and in this specific case the Judge already pronounced himself, the Constitution recognizes that in certain circumstances it is prudent to have a matter which satisfies the constitutional criteria determined by a bench composed of numerically superior judges and the instant Petition meets the criteria therefore the need to be heard by a an enlarged bench, the continued sittings and transaction of house business as it is, has a bearing on public interest raising questions of illegality and discrimination against women and excluding their voices from deliberations of the County Assembly thereby subjecting the public to irreparable harm and loss. She concluded that it is in the interests of justice and fairness that this Application be allowed.

1st Respondent’s Response 8. The 1st Respondent opposed the Application vide the Grounds of Opposition filed on 24/10/2023 through Messrs Z.K. Yego Law Offices. The grounds cited are that are that the Petition has not met the threshold for referral to the Chief Justice under Article 165(4) of the Constitution, the Application is inimical to the provisions of Article 159(2) (b) and (e) of the Constitution as it seeks to subvert the course of justice and delay the determination of this matter, having filed this Petition and sought and obtained interim injunctive orders before a single Judge, the Petitioner is estopped from challenging the jurisdiction of this Court, the matters raised in this Petition are not novel as similar matters have been successfully determined by the Courts, including Petitions challenging the constitutionality of the composition of the National Assembly, the High Court is vested under Article 156 of the Constitution to hear and determine matters falling within its jurisdiction, including matters of interpretation of the Constitution, the instant matter does not raise substantial questions of law, neither are they complex, difficult or likely to require alternative views to warrant the constitution of a bench of Judges, the grant of a certificate under Article 165(4) is exceptional rather than a general rule, that power must be exceptional and not routine, usual or ordinary course of making judicial pronouncements and that it is in the best interest of the public that the available judicial resources be utilized in a sustainable manner through quick and timely dispensation of justice.

2ndRespondent’s Response 9. The 2nd Respondent also opposed the Application vide the Grounds of Opposition filed on 16/10/2023 through Messrs Ngaywa & Kibet Partners LLP. The grounds cited are that the Applicant has not met the threshold for the Petition to be referred to the Chief Justice under Article 165(4) of the Constitution, the matters in question are not novel, the grant of a certificate under Article 165(4) is exceptional rather than a general rule, the power to refer a suit to the Chief Justice for empaneling of an uneven number of judges must be exceptional and not the routine, usual and ordinary course of making judicial pronouncements, judicial resources are scarce, and it is in the public interest that there be a quick and timely dispensation of justice, this matter should thus be determined by a single Judge and save the Court’s resources for other cases, it is not in dispute that a High Court Judge has authority under Article 165, to hear and determine any matter that is within the jurisdiction of the High Court, the decision of an uneven number of judges is of equal force to that of a single judge exercising the same jurisdiction, hence no justification for empanelment of an uneven number of judges in the present circumstances and that the issues raised in the Petition are not so complex or difficult as to be deemed to raise substantial questions of law to warrant the setting up of an uneven number of judges.

Interested Party’s Response 10. The Interested Party also filed Grounds of Opposition on 3/11/2023 through Messrs G&A Advocates. The grounds cited are that the application does not meet the threshold under Article 165(4), the power to certify a matter as ripe for empanelment of an expanded bench of Judges must be the exception and not the routine, usual and ordinary course of making judicial pronouncements, the Application imperils the prudent and efficient use of judicial resources and violates Article 159(2)(b) of the Constitution as well as the overriding objective, any one Judge of the High Court has authority under Article 165 of the Constitution to determine any matter that is within the jurisdiction of the High Court, the decision of an expanded Bench of judges is of equal force and precedential value to that of a single judge exercising the same jurisdiction, the issues and facts raised in the Petition and the response are not so complex or difficult to the extent that they can be said to raise a “substantial question of law” worthy of a reference for the setting up of an expanded bench, contrary to what the Petitioner would want all to believe, this is a simple Petition raising only one issue, namely, whether the said County Assembly is properly constituted and if not, what is the implication/consequences, this issue only requires the interpretation and application of the Constitution as well as statute and in no way is this issue novel, difficult, or of such a nature as to require an expanded bench of judges.

Hearing of the Application 11. With concurrence of the parties, I then directed that the Application be canvassed by way of written Submissions. I also gave strict timelines. Pursuant thereto, the 1st Respondent and the 2nd Respondent both filed their respective Submissions on 1/11/2023 and the Interested Party filed on 3/11/2023. The Petitioner however did not file any Submissions.

12. I also directed the parties also forward to the Court, in “word document version”, “soft copies” of the pleadings that they had already filed in Court in respect to the present Application. Despite not filing Submissions, the Petitioner’s Advocates, too, forwarded a copy. Needless to state, not having been formally filed in Court, I have no basis for accepting the same. I will therefore not consider it.

13. I have however considered the Petitioner’s List of Authorities since this was formally filed on 25/10/2023.

1stRespondent’s Submissions 14. Counsel for the Respondent submitted that at the centre of any application invoking the provisions of Article 165(4) of the Constitution is the test laid down in the case of Okiya Omtata Okoiti & another v Anne Waiguru - Cabinet Secretary Devolution and Planning & 3 others (2017) eKLR wherein the Court of Appeal set out guidelines for certification of matters to be heard by an uneven number of judges, the Constitution establishes the office of Judge of the High Court of Kenya and vests in the Judge all original jurisdiction in both civil and criminal matters, a High Court Judge has the jurisdiction to determine matters touching on constitutional interpretation as well as the enforcement of the Bill of Rights by dint of Article 165 (3) (b) and (d) of the Constitution, for this reason therefore, and notwithstanding the provisions of Article 165(4) of the Constitution, the decision of a 3 Judge bench is of equal force to that of a single Judge exercising the same jurisdiction, it suffices to note that a single Judge deciding a matter is not obliged to follow a decision delivered by a bench of Judges. He cited the cases of Harrison Kinyanjui v Attorney General & Another (2012) eKLR), Vadag Establishment v Y.A. Shretta & Another-Nairobi Misc HCC No. 559 of 2011, Peter Nganga Muiruri v Credit Bank Limited & another-Civil Appeal No. 203 of 2006 and Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another (2016) eKLR and that for a matter to be referred to the Chief Justice under Article 165(4), the High Court must certify that the matter raises a substantial question of law.

15. Counsel submitted further that although raising constitutional questions, the Petition does not merit referral to the Chief Justice under Article 165 (4) of the Constitution, this Court, being vested with jurisdiction under the Constitution, has the power to determine the Petition, the law does not define what constitutes a ‘substantial question of law’ and this is therefore left to the discretion of the individual Judge. He cited the case of Community Advocacy Awareness Trust & Others v The Attorney General & others-HC Petition No. 243 of 2011 and added that the Petitioner has not demonstrated that the Petition raises any novel or substantial question of law that should be handled by a bench of judges constituted by the Chief Justice, in any event, this Court possesses the requisite jurisdiction and power to determine any novel and substantial questions of law as they arise, the Applicant’s Petition raises no more than questions of interpretation and application of the Constitution and any High Court Judge is competent to deal with the same, this Court has the requisite capacity to hear and determine the instant Petition, in any event, the Petitioner has previously applied for and obtained interim injunctive orders in the Petition from the current single Learned Judge and this is by itself an act of submission to the jurisdiction and competence of the Court to determine the Petition, the Petitioner is therefore stopped from now claiming that the Petition raises substantial questions of law that merits referral to the Chief Justice for assignment of an uneven number of judges, one cannot fail to find the connection between this Application and the fact that on 12/10/2023, this Honourable Court lifted the interim ex-parte orders issued on 3/10/2023 in favour of the Applicant, none other than the Applicant has listed that issue as one of the grounds upon which this Application is founded at paragraph 5 of the grounds of the Application, if that is the case, then it is not difficult to read through the Applicant’s mischief as this Application appears to be geared at shopping for a forum to set aside the orders issued by this Honourable Court on 12/10/2023.

16. On the issue of public interest, Counsel submitted that whereas the Petition concerns the general populis of Uasin Gishu County, the leadership thereof and indeed the nation at large, the mere fact that the matter is of great public interest or substantial national importance should not necessarily qualify it to amount to a substantial question of law in order to warrant reference under Article 165(4) of the Constitution, it is dubious if this Petition is a public interest litigation as the Advocate for the Petitioner has already lodged an Application to enjoin to this Petition the Members of County Assembly whose election was nullified giving rise to this Petition, Counsel has described them as her clients, meaning that the Petitioner is just but a proxy and public interest may just be a smokescreen.

17. Counsel further relied on the provisions of Sections 1A and 1B of the Civil Procedure Act which he submitted imposes on the Court the duty to act justly in every situation; the need to have regard to the principle of proportionality and the need to create a level playing ground for all parties coming before the Court by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing. He cited the case of Uhuru Highway Development Limited v Central Bank of Kenya Limited & 2 others Civil Appeal No. 36 of 1996.

18. Counsel submitted further that even if the Petition is of public interest in nature that does not warrant referral to the Chief Justice under Article 165(4), this is because the Court must also consider other factors such as whether a substantial question of law has been raised, resources and time, referral of matters to the Chief Justice for enlargement of the bench requires heavy utilization of judicial resources as well as a prolonged timeframe for the settlement of matters, the end result of these being backlog in the administration of justice, as such, this Application is inimical to the provisions of Article 159 (2) (b) of the Constitution, the issues raised in the Petition are not novel and do not raise substantial questions of law as this Court is not being invited to travel through thicket but in a well-trodden path and that some of the issues raised have already been determined by other Courts.

19. In conclusion, Counsel submitted that the Constitution of Kenya 2010 brought into being a whole new law that in every respect raises substantial questions of law, the same still bears several matters that need constant interpretation by the Courts and as such if every such question were to be determined by a bench of more than one Judge, other judicial business would definitely come to a standstill, and if that were to happen, then the expectation of the public to have their cases decided expeditiously as provided under Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure Act would be frustrated, the instant application is incompetent and an abuse of the Court process and that the Application is brought in bad faith with an intention to curtail the administration of justice and the speedy resolution of the Petition.

2nd Respondent’s Submissions 20. On whether the Application has met the threshold under Article 165(4), Counsel submitted that, a cursory look at Article 165(4) implies that an uneven number of judges shall be constituted only where a matter raises a substantial question of law, under clause 3(b) or (d), a Petition has to achieve this threshold for an uneven number of judges to be constituted, on the definition of “a substantive question of law”, he cited the cases of Chunilal V. Mehta vs Century Spinning and Manufacturing Co. AIR 1962 SC 1314, and Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179.

21. Counsel submitted further that the matters raised in the Petition are purely on the interpretation of the Constitution and its application in relation to the constitution of the County Assembly, it does not raise a substantive point of law which would necessitate the Chief Justice to constitute an uneven number of Judges to hear and determine it, the issues relate to the interpretation of constitutional provisions as read with the County Government Act concerning the constitution of the County Assembly and discrimination of women and marginalized communities, these are matters that are determined by the High Court on a daily basis and do not require an uneven number judge bench to determine the Petition, the threshold in Article 165(4) of the Constitution has not been achieved and as such the Application should be dismissed.

22. On whether the issues raised are novel, weighty and complex enough to warrant the constitution of an uneven number judge bench, Counsel submitted that the issues are not novel, the Constitution of the County Assembly is provided for under Article 177(1) of the Constitution, the County Governments Act has been enacted to give life to the provisions of the Constitution relating to its constitution and operations, the County Assembly Standing Orders give further directions on the operations of a County Assembly, the issues raised are not novel, neither are they weighty or complex as the Petitioner contends, the Petitioner is simply inviting this Court to interpret and apply the Constitution and other provisions of law to the status quo of the County Assembly, the same does not amount to novelty. He cited the case of Council of County Governors vs Lake Basin Development Authority & 6 Others (2019) eKLR where, he submitted, the Court held that the “mere application of principles to a new set of facts presented in a case before the court would not on their own constitute a substantial question of law.

23. Counsel added that even if they were novel issues, the same do not raise substantial questions of law to warrant the empanelment of an uneven number of Judges. He cited the case of Republic v Public Service Commission & Keriako Tobiko Ex parte Nelson Havi [2017] eKLR

24. Counsel submitted further that judicial resources are scarce and it is in the public interest that there be a quick and timely dispensation of justice, the Court should take judicial notice of the fact that judicial resources in terms of judicial officers in the country are still very scarce and empanelment of such a bench would invariably lead to delays in determining cases already in the queue hence worsening the backlog of cases in the country, there is a limited number of judges to adjudicate on disputes for the benefit of the Kenyan public at large, the management of limited judicial resources dictates that it is only in exceptional circumstances and when it is absolutely necessary that a bench of more than one Judge will be constituted, and that there are no exceptional circumstances in the instant case.

25. He urged the Court to consider that empanelment of a bench would be time-consuming and would delay the hearing and determination of this matter contrary to the basic tenets of the principles of the dispensation of justice as envisaged in Article 159(2)(b) of the Constitution which stipulates that “justice shall not be delayed”, it is against public interest to deploy more than one Judge to adjudicate on run-of-the-mill disputes and deny other litigants and potential litigants the personnel to expeditiously determine their disputes. He cited the decision in the case of Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229.

26. Counsel also submitted that it is not disputed that a High Court Judge has authority under Article 165 of the Constitution to hear and determine any matter within the jurisdiction of the High Court, the Petition raises questions on the constitutionality of the composition of the said County Assembly, it also raises the issue of discrimination against women and marginalized communities in the representation of the County Assembly, these are matters which fall within the jurisdiction of the High Court in light of Article 165(3) (b) and (d) and any High Court Judge is properly seized with jurisdiction and the relevant qualifications to hear and determine the issues. He cited the case of Peter Nganga Muiruri vs. Credit Bank Limited & Another Civil Appeal No. 203 of 2006 and submitted that in that case, the Court of Appeal held that “any single Judge of the High Court in this country has the jurisdiction and power to handle a constitutional question”.

27. Counsel further cited the case of Harrison Kinyanjui vs Attorney General & Another (2012) eKLR in which, he submitted, the Court stated that “it must also be remembered that each High Court judge, has authority under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court” and as such a High Court Judge ought not to shy away from his constitutional mandate of interpreting and applying the Constitution. It was Counsel’s contention that the apprehension by the Petitioner that a single judge bench may not be able to adequately address itself to the issues at hand as it is potentially precedent-setting is unfounded and not based on any principle of law. He cited the case of Vadag Establishment vs. Y A Shretta (supra) and argued that as such, the decision of an uneven number of judges is of equal force to that of a single judge exercising the same jurisdiction and none is superior to the other as the Petitioner contends, even where a single judge bench fails to address itself to the issues raised in the Petition, the High Court does not have the last word on the interpretation of the Constitution or the enforcement of the Bill of Rights, there is a right of appeal to the Court of Appeal and by virtue of Article 163(4) of the Constitution, an appeal as of right to the Supreme Court on constitutional matters. He cited the case of Harrison Kinyanjui v Attorney General (supra) and reiterated that the empanelment of an uneven number of judge bench is not a matter of right but it should only be done in exceptional circumstances.

28. On whether it is in the public interest that the uneven judge bench be empanelled, Counsel submitted that although the Applicant contends that the continued sittings and transactions of house business has a bearing on public interest raising questions of illegality and discrimination against women and excluding their voices from deliberations of the County Assembly, issues of discrimination and illegality are issues that the High Court deals with regularly, so are issues of public interest and thus the same do not meet the threshold for empanelment of the uneven number of judges bench. He again cited the case of Wycliffe Ambetsa Oparanya & 2 others (supra)

Interested Party’s Submissions 29. On his part, Counsel for the Interested Party submitted that for a start, the Petitioner, who has all along been insisting that the Petition be expedited, is betrayed by the instant application which goes contrary to this mantra of efficient, expedient, and disposal of suits. He argued that the Constitution does not define what a substantial question of law is, on the definition, he cited the case of Wycliffe Ambetsa Oparanya & 2 others (supra) where he submitted, it was stated that since the determination of such issue is a judicial one, the Court is obliged either on its own motion or on an application of the parties to identify the issues which in its view raise substantial questions of law, therefore the mere fact that parties are of the view that the matter falls under Article 165(4) does not necessarily bind the Court in issuing the said certification. According to Counsel, the import of the above finding is that the Court is called upon to exercise judicial discretion which discretion must be exercised judiciously, as such the Court must consider a myriad of factors to reach an outcome that is judicious in nature. He cited the case of Community Advocacy Awareness Trust & Others (supra).

30. According to Counsel, the Court may consider such factors as whether the matter is moot in the sense that it raises a novel point; whether the matter is complex; whether the matter by its nature requires a substantial amount of time to be disposed of; the effect of the prayers sought in the Petition; and the level of public interest generated by the Petition. He added that the Indian tests for determining whether a matter raises substantial question of law as was set out in the case of Wycliffe Ambetsa Oparanya (Supra) are whether, directly or indirectly, it affects substantial rights of the parties, or whether the question is of general public importance, or whether it is an open question in the sense that the issue has not been settled by pronouncement of the Supreme Court or the Privy Council or by the Federal Court, or the issue is not free from difficulty, or it calls for a discussion for alternative view. He added that however, the Court is forewarned that it must adopt a holistic approach to the matter at hand, in other words, the mere fact that one factor is found to exist does not automatically qualify the matter for certification under Article 165(4).

31. Counsel contended further that the six issues cited by the Petitioner as entitling him for certification for empanelment can be easily summarized as two issues; “whether the said County Assembly is properly constituted; and, if the answer is in the negative what is the implication thereof. According to Counsel, these questions call for the Court to interpret and apply the Constitution and statutory provisions in particular the County Governments Act and Standing Order for said County Assembly, the applicable principles of interpretation are well known and established and nothing novel or difficult or requiring a new perspective is called into play, and that the Petition may indeed attract great public interest and may be novel but that alone does not raise a substantial question of law.

32. He submitted further that a High Court Judge ought not to shy away from his constitutional mandate of interpreting and applying the Constitution, whereas the Constitution permits certain matters to be heard by a numerically enlarged bench, that is an exception to the general legal and constitutional position and it is in our view an option that ought not to be exercised lightly, any one Judge of the High Court has authority under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court, the decision of an expanded bench of judges is of equal force and precedential value to that of a single Judge exercising the same jurisdiction, considering prudent use of resources available to the Judiciary in terms of work force, the empanelment is not necessary where a question in not a substantial one, empanelment requires three more judges to set aside their own dockets to attend to this one matter which by and large is not proper utilization of resources and judicial time which very precious due to the backlog of the cases, for purposes of synchrony of the difference diaries of each Judge in the panel has the potential of prolonging the time within which the Petition is to be disposed of contrary to interest of the parties who would want an expeditious disposal of the Appeal.

Analysis & Determination 33. It is clear that the issue arising for determination in this matter is “whether the Applicant has met the threshold for the Petition herein to be referred to the Hon. Chief Justice under Article 165(4) of the Constitution, for the purposes of empaneling of an uneven number of Judges to determine the Petition”.

34. It is not in dispute that any single Judge of the High Court in Kenya has the jurisdiction and power to hear and determine a constitutional question. This was reiterated by the Court of Appeal, long before the advent the Constitution of Kenya 2010, in the case of in Peter Nganga Muiruri vs. Credit Bank Limited & Another Civil Appeal No. 203 of 2006.

35. Post-2010 Constitution, the above principle was reiterated in the case of Vadag Establishment vs. Y A Shretta & Another Nairobi High Court (Commercial & Admiralty Division) Misc. High Court Civil Suit No. 559 of 2011 where the following was stated:“………….. a High Court whether constituted by one judge or more than one judge exercise the same jurisdiction and neither decision can be said to be superior to the other. True, two heads are better than one, but in terms of the doctrine of stare decisis whether a decision is delivered by one High Court Judge or handed down by a Court comprised of more judges, their precedential value is the same.”

36. There is however Article 165 (3) and (4) of the Constitution of Kenya 2010 which allows for some disputes brought before the High Court which touch on the Constitution and which, by their nature, raise “substantial questions of law”, to be referred to the Chief Justice to appoint an uneven number of Judges to hear and determine. The Article provides as follows:“………………………………(3)Subject to clause (5), the High Court shall have—(a)………………………………………….;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)…………………………………..;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(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)…………………………………………….(e)…………………………………………………..(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.………………………………………………..”

37. The Constitution does not however define what constitutes “substantial question of law.’ As was stated in the case of Community Advocacy Awareness Trust & Others vs. The Attorney General & Others High Court Petition No. 243 of 2011, therefore, it is left to the individual Judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine the matter.

38. It is however generally accepted that the decision whether or not to forward a matter to the Chief Justice for empanelling of a bench of more than one Judge ought to be made only where it is absolutely necessary and in strict compliance with the Constitutional and statutory provisions. The need for caution by a Judge before exercising this discretion was reiterated by G.V. Odunga J (as he then was) in the case of Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another (2016) eKLR. While declining an invitation to refer the matter to the Chief Justice for empanelling of an expended bench, he stated as follows:“8. …………… Despite appreciably great strides made in the expansion of the Judiciary in the recent past, there is definitely much more to be done with respect to achieving the spirit of Article 48 of the Constitution on access to justice. Accordingly, this Country still does not enjoy the luxury of granting such orders at the whims of the parties. Judicial resources in terms of judicial officers in this country are still very scarce and although the time taken for hearing a petition by a single judge may not be any different from that taken by a bench empanelled pursuant to Article 165(4) of the Constitution, it must be appreciated that the empanelling of such a bench invariably leads to delays in determining cases already in the queue hence worsening the backlog crisis in this country ……………..”

39. In reiterating the above principle, Majanja J in the case of Harrison Kinyanjui vs. Attorney General & Another [2012] eKLR, also held as follows:“13. In my view, the reference to the Chief Justice for the empanelling of a three judge bench should be the exception rather than the rule and a higher burden is cast on the party who applies to the court to certify the matter for reference to the Chief Justice. ……………………..”

40. In the same case of Harrison Kinyanjui vs. Attorney General (supra), Majanja J also stressed the need for caution in the exercise of the discretion donated under Article 165(4). In also declining to refer the matter to the Chief Justice for empanelling of more than one Judge, he advised that the phrase “substantial question of law’ should not be too lightly interpreted or defined too generously. He stated as follows:“8. 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 under Article 165 of the Constitution, to determine any matter that is within the jurisdiction of the High Court. Further, and notwithstanding the provisions of Article 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.………………………………………………………………………………………….10. A matter may raise complex issues of fact and law but this does not necessarily imply that the matter is one that raises substantial issues of law. Judges are from time to time required to determine complex issues yet one cannot argue that it means that every issue is one that raises substantial questions of law. Thus, there must be something more to the “substantial question” than merely novelty or complexity of the issue before the court. It may present unique facts not plainly covered by the controlling precedents. It may also involve important questions concerning the scope and meaning of decisions of the higher courts or the application of well-settled principles to the facts of a case”.

41. Another case that dealt with the question of “substantial question of law” was the Indian case of Chunilal V. Mehta –vs- Century Spinning and Manufacturing Co. AlR 1962 SC 1314 in which the term was referred to in the following terms:“The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly or substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or is not free from difficulty or calls for discussions of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the questions are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.”

42. In upholding the ratio decidendi in the above case, the Court of Appeal, in Okiya Omtatah Okoiti & another v Anne Waiguru - Cabinate Secretary, Devolution and Planning & 3 others [2017] eKLR also weighed in as follows:“41. We are fully in agreement with that approach. The position we take whilst embracing the test by the Supreme Court of India in Sir Chunilal V. Mehta and Sons Ltd vs. The Century Spinning and Manufacturing Co. Ltd is that each case must be decided on its own facts and circumstances. No factor alone is decisive. A party seeking certification must lay a basis for the certification. Further, certification under Article 165(4) of the Constitution is a matter in the judicial discretion of the court. Such discretion must however, be exercised on sound basis.42. There are, in our view, parallels to be drawn between certification for purposes of 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). In Hermanus Phillipus Steyn v Giovanni Gnechi- Ruscone [2013] eKLR the 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.”43. It is our judgment therefore, that whether a matter raises a substantial point of law for purposes of Article 165(4) of the Constitution is a matter for determination on a case-by-case basis. The categories of factors that should be taken into account in arriving at that decision cannot be closed.”

43. Regarding the nature of matters contemplated under Article 165(4) to be referred for empanelling of an expanded bench, G.V. Odunga J (as he then was) in the said case of Wycliffe Ambetsa Oparanya (supra) observed as follows:“13. According to the above provision, it does not suffice that the matter raises the issue whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or that it raises the issue of interpretation of the Constitution. The Court must go further and satisfy itself that the issue also raises a substantial question of law. Similarly. the mere fact that a substantial question of law is disclosed does not suffice unless the issue also arises as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or that it raises the issue of interpretation of the Constitution.”

44. The Petition herein raises questions on the constitutionality of the composition of the County Assembly of Uasin Gishu County. It alleges discrimination against women and marginalized communities in the representation of the County Assembly.

45. From my analysis and careful interrogation of the matter, I am inclined to agree with the Interested Party’s Counsel that although the Applicant has listed six issues that he considers to justify certification for empanelment of an expanded bench, these six questions can in fact be consolidated and summarized. On my part, I paraphrase the six to three broad issues, as follows; (i) whether the County Assembly of Uasin Gishu has failed to meet the constitutional threshold requiring the inclusion of the specified number of women and the marginalized in its membership; (ii) whether therefore the County Assembly is properly constituted; and (iii) if not properly constituted, what is the implication thereof on the business conducted by the County Assembly.

46. Applying the principles set out in the various cases that I have referred to hereinabove and applying the same to the facts and circumstances of this case, I find that the Petition raises ordinary questions of interpretation and application of the Constitution. The issues relate to the interpretation of constitutional provisions as read with the County Government Act concerning the constitution of the County Assembly and discrimination of women and marginalized communities. The issues raised in the Petition are, in my view, not novel and do not raise “substantial questions of law”. They cannot be termed as too weighty or too complex. I agree with the Respondents that in fact some of the issues raised have already been determined by other Courts. The Petition does not therefore necessitate the constitution of an expanded panel of Judges to hear and determine.

47. I find that the matters raised concern issues that regularly come before the High Court for determination and are therefore not novel. The constitution of County Assemblies is prescribed under Article 177(1) of the Constitution and further, the County Governments Act and the County Assembly Standing Orders give sufficient directions on the manner in which a County Assembly should operate and conduct its business.

48. On the issue of public interest, although the matter may well attract attention of the general population of the Uasin Gishu County and possibly the rest of the country, the mere fact that a matter is of great public interest or national importance does not necessarily turn it into a “substantial question of law” to justify reference to the Chief Justice under Article 165(4) of the Constitution.

49. Even assuming that the matters raised are novel or weighty or complex or of national importance, the mere fact that one factor is found to exist does not automatically qualify a Petition for certification under Article 165(4). This is because the Court must also consider other factors such as efficient use of available resources and time. As stated by Odunga J in the case Wycliffe Ambetsa Oparanya (supra), referral of matters to the Chief Justice for enlargement of the bench requires heavy utilization of judicial resources as well as a prolonged timeframe for the settlement of matters; since it takes away Judges from other Courts, if not carefully handled, the end result shall be delay and accumulation of heavy backlog in pending cases and by extension, a clog in the general administration of justice.

50. I therefore agree with the Respondents that the apprehension by the Petitioner that a single Judge bench may not be able to adequately address himself to the issues at hand as it is potentially precedent-setting is unfounded.

51. For my above findings, I find company in various previous cases. For instance, in Okiya Omtatah Okoiti v Parliament of Kenya; Parliamentary Service Commission & 2 others (Interested Parties) [2022] eKLR, H. Ongudi found as follows:“18. . ……… The issue at hand is the interpretation of Article 127(2) as read with Article 250(6). It is not disputed that this issue has not been addressed before. Is that in itself a good reason for the empanelment of a bench of an uneven number of judges? My answer would be in the negative.19. The respondent also argues that the determination of this petition is of importance to the parliament of Kenya and the general public as they concern the composition of the Parliamentary service commission. That a decision made herein is likely to serve as a precedent to aid political parties and parliament in their exercise of nomination of persons to the said position. Precedents are not only set by benches, as every judge has the mandate to interpret the Constitution of Kenya plus other statutes, in rendering their decisions.20. The upshot is that the respondent has failed to satisfy this court of the need for empanelment of a bench of an uneven number of judges to hear this petition. …...”

52. Mumbi Ngugi J, (as she then was) too, in Gilbert Mwangi Njuguna v Attorney General, Nairobi Petition No. 267 of 2009 [2012] eKLR, also found as follows:“Weighed against the yardstick of what constitutes a ‘substantial question of law’ the issues may indeed be substantial and of great public interest. However, in my view, they do not merit hearing by an uneven number of judges and can be adequately dealt with by a single judge. Should any party not be satisfied with the decision of the single judge, the appeal process in which the matter fall for consideration before a bench of 3 appellate judges in the Court of Appeal and where there is the option of further appeal to the Supreme Court will be open to the party.”

53. I also cite the case of Bidco Oil Refineries Limited v Attorney General & 3 Others [2013] eKLR, where Majanja J held as follows:“In my view although the issues raised by the applicants are weighty, I do not think that they raise any novel issues of law or matters of law that require the court to tread new ground to the extent that I would consider that this matter raises substantial questions of law.”

54. In the end, I embrace the principle that a “substantial question of law” is a question to be determined in the circumstances of the case and does not necessarily mean any issue of law that is weighty or any that raises a novel issue of law or even any that is complex. Public interest may also be considered but it, too, is not necessarily the only decisive factor. As was stated in the case of County Government of Meru v Ethics And Anti-Corruption Commission [2014] eKLR, again by Majanja J, many provisions of the Constitution are untested and bring forth novel issues yet is not every day that the the Chief Justice is called upon to empanel an expanded bench to determine them.

Final orders_ 55. In light of the foregoing, I issue the following orders:i.The Application (Notice of Motion) dated 19/10/2023 filed by the Petitioner is hereby dismissed.ii.This Court shall now proceed with giving directions geared towards expeditious conclusion of this matter.iii.Costs shall be in the Cause.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10THDAY OF NOVEMBER 2023……………………WANANDA J. R. ANUROJUDGEEldoret High Court Constitutional Petition No. E16 of 2023