Republic v Chief Justice of Kenya & 5 others [2005] KEHC 31 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI MILIMANI LAW COURT

MISCELLANEOUS APPLICATIION No.764 OF 2004

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW AND FOR THE ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUSIN THE MATTER OF ORDER LIII OF THE CIVIL PROCEDURE RULES

IN THE MATTER OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE DECISION MADE BY THE TRIBUNAL INVESTIGATING THE CONDUCT OF JUDGES ON THE 28TH MAY 2004 IN TRIBUNAL MATTER NO 1 OF 2003 RE; JUSTICE ROSELYN NALIAKA NAMBUYE

IN THE MATTER OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

IN THE MATTER OF GAZETTE NOTICE NO 8829 DATED 10TH DECEMBER 2003

IN THE MATTER OF GAZETTE NOTICE NO 96 OF 2004 DATED 6TH JANUARY 2004

IN THE MATTER OF GAZETTE NOTICE NO 378 OF 2004 DATED 19TH JANUARY 2004

IN THE MATTER OF A HEARING NOTICE DATED 30TH JANUARY 2004 OF THE TRIBUNAL OF INQUIRY ESTABLISHED VIDE GAZETTE NOTICE NO 8829 OF 2003

IN THE MATTER OF

THE REPUBLIC

VERSUS

HON THE CHIEF JUSTICE OF KENYA  ................................  1ST RESPONDENT

HON JUSTICE (RTD) ABDUL MAJID COCKAR .…...….....  2ND RESPONDENT

HON JUSTICE JOHN MWERA  ...............................................  3RD RESPONDENT

HON JUSTICE LEONARD NJAGI  .........................................  4TH RESPONDENT

HON JUSTICE DANIEL MUSINGA  .......................................  5TH RESPONDENT

HON JUSTICE ISAAK LENAOLA  .........................................  6TH RESPONDENT

JUDGMENT

The application dated 5th July 2004 is expressed to be an application for Judicial Review under S 8(2) of the Law Reform Act, Chapter 26 of the Laws of Kenya and Order LIII of the Civil Procedure Rules.

The Applicant is a puisne Judge of the High Court of Kenya who is currently on suspension following the invocation of the provisions of S 62 of the Constitution of Kenya.

The principal grounds relied on by the applicant are set out in the body of the application and in the statement filed on 17th June, 2004 pursuant to the provisions of Order LIII of the Civil Procedure Rules.  I will shortly set out the principal grounds but before doing that it is important for me to set out in full the relief sought as per the same statement.  The reliefs sought are:-

a)   Certiorari to call up into the Honourable court and to quash the decision of the 2nd, 3rd, 4th, 5th and 6th Respondents sitting as the Chairman and members of the Tribunal to investigate the conduct of Puisne Judges established under Gazette Notice No 8829 of 11th December 2003, which decision was delivered by the Tribunal on the 28th day of May 2004, as the said decision is contrary to the Constitution of Kenya the rules of Natural Justice and the legitimate expectation of Hon Lady Justice Roselyn Naliaka Nambuye under S 62(5) of the constitution of Kenya.

b)  Certiorari to call all up into the Honourable court and to quash the Rules of Procedure established by the Tribunal to investigate the conduct of Puisne Judges under Gazette Notice No 96 of 6th January 2004 as the said Rules have been made without jurisdiction and are contrary to the provisions of the Constitution of Kenya and the Rules of Natural Justice.

c)   Prohibition to prohibit the 2nd, 3rd, 4th, 5th and 6th respondents sitting as members of the Tribunal to investigate the conduct of Puisne Judges by themselves their servants, officers and or agents from commencing or if they have commenced from continuing any inquiry or investigation into the conduct of Lady Justice Nambuye whether including or limited to the allegations that the said Puisne Judge has been involved in corruption unethical practices and the absence of integrity in the performance of the functions of her office or into allegations drawn by Assisting Counsel to the Tribunal Mr P K Murgor on 30th January 2004.

The application has been brought against the Chief Justice of Kenya and the five Judges appointed by the President to constitute the Tribunal established under the provisions of S 62 of the Constitution.

d)  As against the Chief Justice, the 1st respondent the relief sought is a Mandamus Order directed to the 1st respondent to observe the rules of Natural Justice and if the 1st respondent wishes to imitate the constitutional process under S 62(5) of the Constitution of Kenya having already announced publicly on the 4th October, 2003 that there were Judges involved in corruption and misconduct that the said 1st respondent do afford Hon Lady Justice Nambuye the protection of the Rules of Natural Justice by confronting the Judges with all the evidence of corruption, misbehavior or want of Judicial ethics as ways expressly recommended in the report of the Integrity and Anti Corruption Committee of the Judiciary otherwise known as the Ringera Report which report was presented to the 1st respondent in public on the 30th September, 2003.

It is important to note that although the Tribunal had duly commenced its deliberations the tribunals process or proceedings were halted following the ex-parte order for leave and stay granted by Honourable Justice Kihara Kariuki on 26th June 2004.

e)   In addition the applicant has filed written skeleton arguments dated 24th May 2005 which amplify the above grounds

f)   Costs of the application to be awarded to the applicant

RESPONDENTS GROUNDS

The respondents have in opposition relied on the following:-

Grounds of opposition dated 14th July 2003

Written skeleton arguments dated 8th February 2005 filed on 9th February 2005 together with a list of authorities duly paginated and highlighted.

Supporting written skeleton arguments dated 22nd February 2005 filed on 24th February 2005.

An outline of the grounds of opposition is as follows:-

The application is incurably defective

The Honourable court lacks jurisdiction to grant the relief sought

The appointment of the Tribunal to investigate the conduct of judges was in accordance with the relevant provisions of the Constitution.

The conduct of the applicant in her Judicial capacity can only be investigated by the Tribunal and it has therefore not usurped the powers of the Attorney General and the Commissioner of Police or any other authority

There has been no breach of any provisions of the Constitution and/or rules of natural justice with regard to the appointment formulation of rules of procedure and proceedings of the Tribunal as alleged by the applicant

There has been no breach of the principle of separation of powers in the appointment of the Tribunal and its officers

The application is premature vexatious frivolous, lacks merit and an abuse of the court process.

To supplement the above grounds the respondents have articulated the following arguments:-

The application is expressed to be an application for judicial review under Section 8(2) of the Law Reform Act Chapter 26 of the Laws of Kenya and Order LIIII (53) of the civil Procedure Rules.

Under the Law Reform Act the only available procedure in an application for Judicial Review are certiorari, mandamus, and prohibition

Judicial orders have their root in Administrative Law and are designed to check excess of an Administrative Judicial or Quasi judicial bodies inferior to the High Court

It is trite law that Judicial Review remedies cannot be used to strike down provisions of the Constitutions or as tools of Constitutional interpretation

It is clear that the applicant seeks to attack the manner in which section 62(5) of the Constitution has been invoked.  In effect she is complaining about the manner in which the President of the Republic of Kenya has exercised his powers under the Constitution.  This complaint removes the present application from the purview of Judicial Review and is barred by S 14(2) of the Constitution which is designed to preclude suits against the President when he exercises his Constitutional functions.  It cannot be circumnavigated by suing other persons acting pursuant to the exercise of such powers.  In the instant case what is under attack is the presidents actions pursuant to S 62(5) and this cannot be camouflaged by suing the respondents

An Order of certiorari cannot issue in the circumstances of this case

An Order of prohibition cannot issue in the circumstances of this case

An order of Mandamus cannot issue

The Statement in Judicial review application should only contain a description of the parties, the grounds relied on and the relief sought and that there no proper verifying Affidavit all the facts having been set out in the statement

SUMMARY OF GROUNDS AND ISSUES

The applicant relies on 24 principal grounds set out in the statement as number 1 to 24 under the heading of Principal Grounds.  However after taking into account all the grounds and objections the court considers the following to be the crucial grounds:-

A.    Alleged breach of the Constitution in the manner section 62 of the Constitution was invoked.  Does the principle of legitimate expectation apply and if so what is the legitimate expectation under the Constitution.  Is the President’s action subject to Judicial Review?

B.    Do Gazette Notice 8829 of 11th December 2003 and Gazette Notice 96 of 6th January 2004 offend section 62(5) of the Constitution and is an attack on the President’s powers under S 62 valid in law and the effect if any of the failure to join the President in the application

C.    Alleged breach of Fundamental rights and Procedures under S 77(10) and 11 of the Constitution.  Is the applicant entitled to redress by way of Judicial Review

D.    The validity of the Rules of Procedure made pursuant to Gazette Notice 96 of January 2004 and does the Tribunal have powers to regulate its own rules of procedure and was the applicant aggrieved by the Tribunals ruling dated 28th May 2004 and is the ruling challengeable under the court’s Judicial Review jurisdiction.

What is the effect of the Tribunals ruling dated 28th May 2004 and does the ruling constitute a cause of action with remedies under the courts’ Judicial review Jurisdiction

E.    The alleged breach of the Rules of Natural Justice

F.    If there is a cause of action or actions under the Constitution does it lie in Judicial review or under the provisions of the Constitution

G.    It is not disputed that the applicant through her advocates did take part in the Tribunal’s Proceedings on 17th, 18th, 28th and 29th June 2004 when one witness was fully examined in chief and also cross-examined by the applicants’ advocates.  What is the effect in law of the participation of the applicant and her advocates.

H.   SCOPE OF JUDICIAL ORDERS SOUGHT – Can the orders be given

I.     IS THE APPLICATION LEGALLY COMPETENT – In substance and form?

A  BREACH OF CONSTITUTION AND LEGITIMATE EXPECTATION

In tackling this issue it is extremely important to set out the relevant part of the Constitution.

Section 62(3) on removal of Judges reads:-

“A judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour and shall not be removed except in accordance with this section

(4)   A Judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the Judge ought to be removed from office for inability as aforesaid or for misbehaviour.

(5)   If the Chief Justice represents to the President that the question of removing a puisne Judge under this section ought to be investigated, then

(a)   the President shall appoint a tribunal which shall consist of a Chairman and four other members selected by the President from among persons

(i)   who hold or have held the office of Judge of the High Court or Judge of Appeal; or

(ii)  who are qualified to be appointed as judges of the High Court under section 61(3); or

(iii)  upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act; and

(b)   the tribunal shall inquire into the matter and report on the facts thereof to the president and recommend to the president whether the judge ought to be removed under this section

(6)   Where the question of removing a Judge from office has been referred to a tribunal under this section, the President acting in accordance with the advice of the Chief Justice, may suspend the Judge from exercising the functions of his office and any such suspension may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommends to the President that the Judge ought not to be removed from office.”

It was submitted by the learned counsel for the applicant that the process at the Chief Justice level should have taken five (5) stages as follows:-

1)   Stage one  -  complaint against the Judge received by the Chief Justice

2)   Stage Two  -  the Chief Justice investigates the complaint – The investigation may be administrative or a Board of Inquiry – the Chief Justice verifies complaint

3)   Stage Three – the Judge having been confronted with the complaint by the Chief Justice answers to the Chief Justice during the Inquiry stage

4)   Stage Four  -  Determination by the Chief Justice that Judge X must be removed or the Chief Justice dismisses the complaint.  Matter ends here

5)   Stage Five  -  S 62(5) of the Constitution now takes charge when the Chief Justice makes a representation to the President a tribunal is set up and it starts the Inquiry or investigation

The learned counsel contended that the Chief Justice started the process at stage five instead.

While in terms of a change in the law or Constitutional reform the court has great sympathy for the suggestion made – stages 1 to 4 the court finds that it cannot imply a process that is not provided for by the Constitution.  To do so is to rewrite the Constitution and this is not the function of the court.  A right of hearing is only provided for at the Tribunal stage and the applicant has been accorded that right by the Tribunal.

In the case of GEORGE MUCHAI v CHARITY NGILU and TWO OTHERSHC MISC 1613 of 2003 unreported this court held that in the case of a statute exercise of inherent powers was not available to invent procedure where statute law has prescribed a specific procedure.

If this is the situation with a mere statute the principle must apply with even greater force where the Constitution provides a particular procedure as it has done under S 62.  The court cannot invent a procedure not prescribed by the Constitution.

In the case of PAUL IMISON v THE ATTORNEY GENERAL & OTHERSHC Misc 1604 of 2003 the application for judicial review was dismissed because there was no proper verifying affidavit and this court expressed itself obiter on 26 (3) (4) and 7 of the Constitution in keeping with GITHUNGURI (2) and obviously had the constitutional point been argued fully the effect of LN 133/2001 Rules and the failure to bring a Constitutional application would have been considered since GITHUNGURI 2 was decided before the coming into force of the rules made under S 84 (6).  An application made contrary to the rules made under the section cannot be valid and the court has the power to dismiss it.

The High court has in the following cases dismissed applications brought in contravention of Rules made under S 84(6) of the Constitution:-

1.   Republic v Attorney General exparte William Kipruto Birir Arap Chelashaw v Attorney General & another Misc Civil  Appl No 898 of 2003

2.   Republic v Attorney General exparte William Kipruto Birir Arap Chelashaw v Attorney General & another Misc Civil App No 898 of 2003

It has been strongly argued and to some extent persuasively that the Chief Justice ought to have given the applicant a hearing as per the stages set out above.  In this respect the learned counsel for the applicant has suggested at least 5 stages in which upon receiving a complaint the Chief Justice ought to have followed and that the rules of natural justice i.e the right of hearing applied.

The question for the court however is to determine the position in terms of what the Constitution stipulates.  The court has no hesitation in stating that s 62 of the Constitution does not exclude the application of the rules of natural justice because S 62(5) contemplates that the Tribunal appointed ought to follow in its hearings the rules of natural justice in carrying out the inquiry or investigation.  Until the tribunal submits its recommendation it is important to appreciate that the Judge is still legally in office even where she has been suspended under the section.

As regards the representation by the Chief Justice the Constitution is silent on whether he should conduct an inquiry.  In other words he is not constitutionally mandated to conduct an inquiry.  However supposing in his wisdom he chooses to conduct an inquiry and the affected judge refuses or declines to appear before him and argues that he, the Chief Justice does not have any such powers under the Constitution and that it is ultra vires the Constitution how would the Chief Justice handle the situation?  From the wording of S 62 as set out above he could be embarrassed by such a reluctant Judge for the reason that his mandate is simply to make a representation and not to conduct an inquiry at that stage.  Under the constitution the mandate to conduct an inquiry or an investigation is vested in the Tribunal appointed under Section 6 2 (5).  On the other hand if the Chief Justice in his wisdom conducts a hearing where a Judge is willing and desirous of such a hearing and perhaps being the first natural thing any such Judge expects of his Chief Justice is there a problem in applying a common sense approach and hear such a Judge.  Prima facie no problem is apparent in his adopting this approach which has very solid basis or justification in common sense and rules of natural justice but a closer scrutiny of the Constitutional provisions set out above reveals that his (ie the Chief Justice) only role is to determine or ascertain if the question of removal has arisen and that the issue of the determination of the question is clearly vested or placed on the Tribunal – that question means the issues and facts giving rise to the question.  Should he decide to determine the question at this stage he would be regarded as usurping the role of the tribunal because the wording of S 62 is not ambiguous or unclear to enable him to imply that he would be entitled to reasonably determine the question since not all questions would warrant the removal of a Judge.  A Chief Justice who breathes a spirit in the section as urged before this court does run the risk of usurpation of powers not expressly vested in him.

The court must also take into account the issue of the independence of Judges.

Although the Chief Justice does occupy the pinnacle of the Judicial hierarchy in the Administrative Structure, as a Judge he is one among equals because the concept of independence of Judges does encompass the principle that Judges are independent of each other.  In some cases a determination by the Chief Justice of certain questions and his liberty to ply into Judges affairs would compromise that independence.

It seems to me that failure to confer on the Chief Justice here in Kenya and even in Tobago a specific right to hear complaints against Judges and to make a determination on them as the first port of call was deliberate on the part of the Framers of our Constitution perhaps in the deference to this principle.  Hence in the case of Trinidad & Tobago the first right of hearing is conferred on the Legal Services Commission and where the Chief Justice is a member and the second right of hearing is conferred on the Judicial Committee ie the Privy Council and in the case of Kenya on the Tribunal where the Chief Justice is not a member.  The ideal situation in Kenya would be the Judicial Service Commission as the first port of call and the Tribunal as second call.

In interpreting the Constitution one must take into account the words used and whether or not they are ambiguous because the spirit of the Constitution must derive from the words used and not those implied.

I find no ambiguity in the words used in S 62 of the Constitution.  Consequently I find as follows:-

1.  The only constitutional right of hearing is conferred by S 62(5) by virtue of the appointment of a Tribunal and the applicant has not been denied that right.  In fact she has participated in the Tribunals hearings.  I find that as regards the proceedings at the tribunal the applicants legitimate expectation is that of being accorded a fair hearing and there is nothing to show that this has not been accorded.

2.   This application having been brought under the Judicial Review jurisdiction this court cannot avail the applicant the right to question the mode of the exercise of the Constitutional powers and duties by the Chief Justice to make a representation to the President under S 62(5).  In exercising his powers under this section the Chief  Justice who doubles up as a High Court Judge and a Court of Appeal judge does so as a Judge and judicial review jurisdiction does not apply to a Judge of the High court or any other Judge.  It only applies to subordinate court administrative bodies, and court marshals.  This is trite law.  A mandamus cannot therefore in law lie against the Chief Justice and it cannot also lie in respect of a legal duty already performed.  The claim against the Chief Justice is therefore clearly misconceived in law.

3.   I further find that since S 62 is not ambiguous there is no question for Constitution interpretation before this court even on the assumption that this application is procedurally right and as stated above it is not.  Such a question can only arise when at least two interpretations are possible.

In trying to ascertain if this application does raise any Constitutional issue I have derived great assistance from the case of STEPHEN WAMWEA KABUE & 4 OTHERS v REPUBLIC where COCKAR CHIEF JUSTICE (by sheer twist of fate now the Chairman of the challenged Tribunal in this case), quoted his predecessor in office Chief Justice Apaloo view of what a Constitutional issue is:-

“My own conception of a Constitutional issue when it relates to the interpretation of a provision of a Constitution is that there are posed to the court, two or more conflicting interpretations of the Constitution and the Constitutional court is asked to pronounce on which is the correct one”

In the case in question there was delay in taking to court the concerned persons to court and alleged torture of two of the accused.  The Chief Justice declined to constitute a Constitutional court under the referral jurisdiction from the magistrate court under S 67 and S 84(3) of the Constitution because there was no Constitutional question for determination.

Even assuming for the sake of argument that it is possible to give Constitutional redress in this matter is S 62 by way of analogy capable of having two or more interpretations?  Is there any ambiguity in its provisions.  The court is not satisfied that the section is capable of more than one interpretation and the court finds no ambiguity in the relevant provisions of the section.  In addition for a matter to fall under S 84 there must be proof of contravention of any of the fundamental rights and freedoms set out in the chapter 5 of the constitution – from S 70 to s 83 of the Constitution and no such contravention has been alleged and proved in the instant case.  The court cannot therefore grant any Constitutional relief including “writs” referred to in S 84 and which are forerunners of the modern day judicial orders.

A word or phrase is ambiguous when it has more than one meaning or has shades of meaning.  The same applies to a section.

Lord Wright in JAMES COMMONWEALTH OF AUSTALIA 1936 A C 578 said:  “that a Constitution must not be considered in a narrow or pedantic manner and that construction must be beneficial to the widest possible amplitude of its powers must be adopted.”

In our situation where there is no ambiguity in the section being interpreted and I would without any hesitation apply and adopt the memorable principle set out by Chief Justice KANIA of INDIA in the case of AK GOPALAN  v THE STATE (1950) SCR 88, 120 (50) A Sc 27.

“A Court of Law must gather the spirit of the constitution from the language used and what one may believe to be the spirit of the Constitution cannot prevail if not supported by the language which therefore must be construed according to well established rules of interpretation uninfluenced by an assumed spirit of the Constitution.  Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, the court cannot limit then upon any notion of the spirit of the Constitution.”

In the CENTRAL PROVINCE CASE 1959 FC R 18 (39) AFC - an Indian case Gwyer Chief Justice held:

“A broad and liberal spirit should inspire those whose duty is to interpret the Constitution but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or Constitutional theory or even for the purposes of supplying omissions of  correcting supposed errors to it.  A Federal Court will not strengthen but only derogate further its position if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of a government is a living and organic thing which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat”

Any such interpretation has in the past been sought by an Originating Motion.  In addition I do accept the Constitutional principle as set out in the above case and I am unable to stretch the meaning of S 62 to include what the law ought to be instead of what the law is.

4.   For the same reasons as above I find no contravention of S 62 and therefore there cannot be any Constitutional relief without proof of contravention.

5.   Even in the unlikely event of the applicant persuading the court that a right of hearing other than the one envisaged or contemplated by S 62(5) were to be implied and that her fundamental rights and freedoms have been violated S 84(6) demands that such relief be sought by way of an Originating summons.  The application has not been so brought.  Following the bringing into force LN 133/2001 – ie Rules made under S 84 (6) any relief must be by way of an Originating Summons and the articulation of any right is specifically made subject to the rules – see S 84 (1) of the Constitution.  This application cannot succeed for this reason as well.

Legitimate Expectation

It has been argued that a Judge expects a hearing prior to the appointment of the tribunal, while it is conceded that such a hearing would be the ideal but is such an expectation a reasonable expectation in terms of Constitutional law and to a Judge who is deemed to know what to expect in terms of her constitutional rights.

On this I find that it would not be a reasonable legitimate expectation to contemplate a hearing other than that stipulated in S 62 (5) of the Constitution because it is the only one expressly provided.  The Chief Justice cannot give promises he has no powers to give.

The suggested 5 stages hearing are only attractive in terms of Constitutional Law reform to have the rule of natural justice – entrenched in more than one tier in the process of removing a Judge.  This is desirable and necessary but it is not the law currently.

Finally the application brought by way of a judicial review application has purported to challenge the Presidents Constitutional power under the section although the President has not been made a party.  The court cannot make orders against a third party who has not been joined.  The challenge to the exercise of the presidential powers is therefore incompetent and any challenge to the Gazette Notices and the consequential relief is incompetent for this reason as well the non joinder and also in the face of S 14(2) of the Constitution.

Again as reasoned above as regards the Chief Justice the exercise of Presidential powers under the Constitution cannot be challenged by way of Judicial review at all because judicial review jurisdiction is derived from an Act of Parliament and is not entrenched in the Constitution unlike India and the United States where Judicial review jurisdiction has been specifically conferred  under the respective Constitutions in Kenya the jurisdiction is statutory.  The relief sought is also incompetent for this reason as well.

The legitimate expectation is what is contained in the constitutional provisions.

ISSUE B – APPLICATION OF S 62 OF THE CONSTITUTION AND GAZETTE NOTICES

Notwithstanding the holding in issue “A” above that judicial review jurisdiction cannot be used for the purpose of challenging the provisions of S 62 and what has been done or not done as against the Chief Justice and the President, the challenge of the Gazette Notice 88 29 of 11th December and Gazette Notice 96 of 6th January 2004 do not offend the provisions of S 62 for the following reasons:-

Oxford Advanced learners Dictionary has defined “misconduct” to include “improper behaviour”.  Similarly Blacks Law dictionary 7th Edition has defined misconduct to mean improper behaviour in office. Official has been defined to include misbehaviour in office.

Section 69 of the Interpretation and General Provisions Act Cap 2 reads:

“The production of a copy of the Gazette Notice containing a written law or notice shall be prima facie evidence in all courts and for all intents and purposes whatsoever of the due making and the tenor of the written law or notice”

Blacks Law Dictionary defines “conduct” as personal behaviour whether by action, in action; the manner in which a person behaves”

When the Gazette Notices are read together with the provision of S 62 their validity cannot both be reasonably questioned because S 62 (3) clearly states that a Judge of the High Court may be removed from office only for inability to perform the function of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.

A question of his removal can only arise out of the two reasons set out in the section.

In the matter before the court the President relied on the second reason of alleged misbehaviour and which he wants investigated by the Tribunal.  The argument that the words used in S 62(3) (4) and (5) of the Constitution should have been used in the Gazette Notices for them to be valid or constitutional is untenable because the Notice must be read within the context of the relevant provisions of the Constitution.

I accept the two authorities cited by the learned Counsel for the respondents Dr Patrick Lumumba.

ABEID v BADBES 1968 EA p 598 where at page 598 the holding states:

“The notice was valid because it contained all that was required under the Act and the Regulations, which are directory.  Although there was variation between the wording in Form A” in the Regulations and the Act itself the form was not ultra vires the Act”.

In ELDON GARAGES LTD v KINGSTON – UPON – HULL – COUNTY BOROUGH COUNCIL [1974] I ALL ER 358, Templeman J said inter alia:-

“Then counsel for the plaintiffs said the magic words “breach of planning control” are not used and there is no allegation in so many words of a breach of planning control.  All these submissions both alternatively and accumulatively do not create uncertainty and account to submission that this is such a technical document that you have got to use the exact words of the Act.  Now, I do not think the authorities carry it that far and I think it would be wrong to carry it too far.

The result of this submission, if acceded to it would be that the enforcement notice is a kind of spell by a witch doctor and unless the witch doctor gets the exact words of the incantation right, then the spell does not work.  Well, although, as the House of Lords pointed out one has got to be very careful in these cases because of the individual right involved, we have not yet got to that stage and I do not propose to begin getting near that stage.

‘In my judgment all the matters which counsel for the plaintiffs urged do not obscure the fact that the notice on its true Construction told the plaintiffs what they had done wrong only as regards the fact but also as regards the particular breach of planning control involved, namely ... without planning permission.  That being so, it seems to me that I must  dismiss this summons.  This is not an enforcement notice which relates to Break House, and although counsel for the plaintiffs has argued this case very skillfully and has put forward every argument open to him I intend no disrespect to him and no criticism of anybody when I say that it is true that the pettifogging was stopped and dismiss his summons”.

Applying the same principles as in the two cases above I find that failure to use the exact words of S 62 in the Gazette is not fatal and the Gazette Notices are valid in that the Notices have substantially conveyed the meaning intended by s 62.  Although in the strict sense the Tribunal itself can be challenged under the Judicial review jurisdiction for the reasons set out herein I find that the notices are not amenable to judicial review.

In addition the President is not a party to the proceedings and therefore no orders can issue on this ground as well, including the provisions of S 14(2) of the Constitution.

ISSUE C - ALLEGED BREACH OF CONSTITUTIONAL RIGHTS

The applicant has contended that there is a breach of her fundamental Rights and Procedures under S 77(10) and (11) of the Constitution.  Whereas this court must make it crystal clear that it is not in any way commenting or dealing with the merits of the allegations made against the Judge the matter being squarely within the mandate of the Tribunal, it must nevertheless point out that for any alleged breach to be properly articulated an application by way of an Originating Summons is required by the Rules made under the Constitution and this is not what the applicant has done here – where the applicant purports to enforce such rights by way of a Notice of Motion seeking Judicial review orders of certiorari, mandamus and prohibition.  Such an application is clearly defective under the law.  Any relief under the Constitution should have been sought by way of Originating Summons as stipulated in S 84(1) and the Rules made under S 84(6).  For this reason the claim based on S 77(10) and 11 of the Constitution that must fail as well for contravening the Constitutional rules made under S 84(6).  Also see the elaboration of the position later on in the judgment.

ISSUE D:  PRESIDENTIAL IMMUNITY

The applicant has also argued that the Tribunals rules of procedure are unconstitutional.

It is not clear to the court why the rules of procedure are challengeable at all.  Firstly, they incorporate rules of natural justice by giving the applicant the right of hearing.  Secondly the challenge on the validity of Rules of Procedure of the Tribunal without joining of the President who is the author of the Gazette Notice No 8829 of 10th December 2003 in which he gave the Tribunal power to regulate its own procedures is a misdirection since an order cannot be made against a party who has not been joined.  The jurisdiction is vested on the members of the Tribunal by the President and the rules of procedure are clearly within the Tribunal mandate as given by the President.

Moreover under S 23 of the Constitution I find that all Executive powers are vested in the President and judicial review Jurisdiction would not be available to challenge those powers because any such challenge could be a violation of the principle of separation of powers and also the reason why the President has been conferred with Presidential immunity while in office under S 14 of the Constitution see CLINTON v JONES 520 United States 681 117 S Ct.  1636 137 L Ed 2d 945 (1997) in which the reasoning behind Presidential Immunity was stated in the earlier famous  case of NIXON v FITZGERALD (1982) 13th Edition at page 408 the Supreme Court delivered itself as follows:-

“One central concern was to avoid rendering the President unduly cautious in the discharge of his official duties.”

Although in the case of CLINTON v JONES the President’s immunity for unofficial acts was not upheld the Supreme Court did none the less appreciate the force of the principle behind Presidential immunity which was expressed as follows:-

“The President contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devotes his undivided time and attention to his public duties.  He submits that – given the nature of the office – the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed.”

It is clear that the Presidential immunity in our Constitution does indeed cover both official acts and unofficial acts while the President is in office.  Our President can be sued for the unofficial acts upon leaving office.

I therefore find that any attempt to challenge the members of the Tribunal in respect of the powers directly exercised by the President through the publication of a Gazette Notice and pursuant to powers conferred on him by the Constitution is an indirect challenges on the Presidential immunity and any such challenge is unconstitutional and invalid.

Moreover where the power to make rules has not been specifically conferred by the appointing authority (here it has been so conferred) the correct legal position appears in HALSBURY’S LAWS OF ENGLAND Vol(1) 4th Edition – para 97 as follows:-

“Prima facie, a Tribunal enjoys discretion to regulate its own method of proceedings.  If there is some statutory or other express procedure which applies to the decision or inquiry that procedure must obviously be complied with.  However in certain circumstances the courts will be willing to supplement an express procedure with implied obligations required by fairness.”

The applicant has also challenged the ruling of the Tribunal dated 28th May 2004 and has sought judicial review orders against it.  This cannot be a cause of action under judicial review because the judicial review jurisdiction does not avail to attack a decision given on merit by a tribunal.  The remedy lies on appeal.  The High Court while exercising its judicial review jurisdiction does not sit on appeal see the review of the law on this point in R v JUDICIAL SERVICE COMMISSION ex-parte PARENO Misc Appl No 1025 of 2003 AND THE KENYA EXAMINATIONS COUNCIL CASE cited later in the judgment.

It is erroneous to suggest that the decision dated 28th May 2004 by the 2nd to 6th respondents did confer jurisdiction on the Tribunal.  On the contrary the Tribunals jurisdiction was conferred on it by the President pursuant to S 62(5) of the Constitution and communicated to the Public generally by Gazette Notice No 7282 of 15th October 2003 which was later revoked by Gazette Notice 8829 of 10th December, 2003 which in turn reaffirmed the same jurisdiction to the Tribunal.

While I agree with the learned counsel for the applicant and the respondent that the Tribunal is an adjudicating tribunal instead of an inquisitorial tribunal contrary to the finding on this in the ruling, I find that nothing turns on this finding as contended by the applicant’s counsel since whether or not the tribunal is an adjudicating or an inquisitorial one the rules governing the tribunal have been formulated with the rules of natural justice in view as is clear from the rules of procedure themselves.  I find that no prejudice has been caused or likely to be caused by the Tribunal giving itself the tag of an inquisitorial tribunal because its Constitutional mandate is to make recommendations after a hearing conducted in conformity with the rules of natural justice.  The words “Adjudicate” has been defined by BLACKS LAW DICTIONARY 7th Edition as under:-

1.   To rule upon judicially

2.   To adjudge

“Adjudication”means

1.   The legal process of resolving a dispute; the process of judicially deciding a case

2.   Judgment

“ Investigate” means

1.   To inquire into (a matter) systematically, to make a (suspect) the subject of a criminal inquiry – the police investigated the suspects involvement in the murder.

2.   To make an official inquiry

On the other hand the OXFORD Advanced Learners Dictionary has the following definitions:-

“adjudicate” (1)  act as a judge in a court, tribunal, contest etc

(2)   give a decision on

“inquire   (1)  to learn the facts about something investigate

“inquisition” (2)  investigation or interrogation especially that which is severe and looks closely into details

It is clear from the above definition that the tribunal would be adjudicating than being inquisitorial because under its rules it leans more towards court procedures including rules of evidence than the Continental inquisitorial systems of where the Judge steps down into the arena to question and to direct proceedings.  On this point I find for the applicant but for the reason stated above nothing turns on this particular finding in the ruling because this court cannot adjudicate on merit.

ISSUE E:  CHALLENGE TO THE TRIBUNAL RULES OF PROCEDURE

It is clear to the court that by formulating the Rules of procedure the Tribunal intended or intends to give the applicant a fair hearing.  It is a contradiction to suggest that the rules of procedure and the regulations by the Tribunal contravene the rules of natural justice.  The applicant has failed to demonstrate that the tribunal is in breach of any particular rule or has failed to adhere to any of the formulated rules and regulations.

As per the finding in issue “A” above the prayer of mandamus is clearly misplaced for the following reasons:-

Under section 62(5) the Chief Justice is not obliged to make any inquiry.  In the case of REES v CRANE 1994 2 A C 123 has been heavily relied on by the applicant.  The instant case must be distinguished from the authority which has been hereby relied on by the applicant counsel, namely the TRINIDAD AND TOBAGO case REES & OTHERS v CRANE AIL FR p 833 where the Chief Justice of Tobago unlike the Chief Justice in this case had removed the Judge from the cause list or Duty rooster contrary to the principle of the independence of the Judiciary.  In our case the Chief Justice chose to remain silent and only made a representation.

The other distinguishing point is that in the REES case the Constitutional provisions of S 137 are not on all fours with S 62 of the Kenya Constitution in that the Trinidad provision does provide for a hearing by the Legal Services Commission and in the Judicial Committee Stages whereas in the Kenyan situation the right of hearing is only set out in S 62 (5) when the Tribunal is appointed.

The third point of departure from this situation is that in the REES case there were two applications a Judicial review application and a constitutional application and this complied with the Constitutional law of TRINIDAD & TOBAGO.

In the instant case the applicant has only brought a Judicial review application seeking Constitutional remedies and reliefs and the application is therefore incompetent and the principles in REES though admirable cannot apply to the instant case.

The other distinguishing factor between the two situations despite the apparent similarities of S 137 of the Tobago Constitution and our S 62 is that the Privy Council did consider section 5 of the Tobago Constitution which reads:-

“5  (2)  Without prejudice to subsection (1) but subject to this chapter and to section 54 Parliament may not .............

(e)    deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for determination of his rights and obligations

(h)     deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.

This section does materially depart from our own provisions to secure protection of the law.  In our case it is abundantly clear that it is the Tribunal which is an adjudicating body under S 77(9) and (10) and it is also clear to the court that the Tribunal has given the applicant the liberty to conduct the proceedings in terms of the section.  The applicant has not been denied the right to be heard in Camera and it is not clear why and on what the Tribunal is being faulted.

In the case of the Tobago provisions there are procedural safeguards guaranteed by the Constitution as per S (5) and also the requirement for a fundamental justice and right of hearing as per S 5(e)

The Judge in the Tobago case had therefore a legitimate expectation to wider provisions of the Constitution that in the instant case. There is a clear case for Law Reform in this area to ensure that the rules of natural justice are embedded to the process of removal of a Judge in perhaps more than one tier.

Finally the two structures differ in terms of the process:

TobagoKenya

1)  Legal Services Commission      1) Chief Justice represent

represents to the President         to the presidents

(Chief Justice is a member)

2)  President appoints a Tribunal   2)  President appoints a Tribunal

3) Tribunal inquires and reports on  3)  Tribunal inquires and the facts investigates and recommends

4)   President acts on the         4)  President acts in accordance

Recommendations with the recommendations

5)  Judicial committee

In the case of the Tobago Chief Justice his role was to sit in the Commission.  Instead after receiving the complaint he acted contrary to the provisions of the Constitution and the principle of the independence of the Judges by removing the Judge from the duty rooster when he had no such power under the Constitution hence the quashing of his decision and by extension that of the Legal Commission.  Both had acted ultra vires the Constitution.

It is significant to note that both the lack of secure protection in terms of the Tobago Constitution including fair hearing and procedural Constitutional safeguards were already incorporated in the Constitution and therefore a Constitutional application having been brought Constitutional relief was granted.

Apart from the absence of similar Constitutional provisions here in Kenya the court is being asked to invoke Judicial review jurisdiction to grant Constitutional relief that has not been provided for.

It is also significant to state that the learned counsels Mr Mwenesi and Mr Simani for the applicant who no doubt have argued the case with considerable skill did also lean heavily on the case of COUNCIL OF CIVIL SERVICE UNIONS & OTHERS v MINISTER FOR CIVIL SERVICE 1985 I AC 374 which has extended Judicial review jurisdiction in the United Kingdom to the exercise prerogative powers or acts as opposed to those with a statutory origin.

I must at the outset confess that I have in my recent of the rulings on Judicial review found the authority exceptionally useful in terms of future growth of Judicial review and especially on the concept of legitimate expectation.  However in terms of Constitutional law the authority cannot be applied to Constitutional Democracies such as Kenya, India and to some extent Canada in that whereas the United Kingdom has her common law to safeguard and protect the unwritten Constitutional rights in our case the Constitution has clear provisions which in my opinion cannot be overridden by the common law.

It follows that if an expectation does not spring from the written words of the Constitution the Courts cannot invent it because the Constitution job holders cannot promise what the Constitution has not given them.

(ii)     The law leans in favour of the general proposition that there is no requirement for hearing in the preliminary stages as illustrated in WISEMAN & ANOTHER v BOREMAN AND OTHERS [1969] 3 ALL ER page 275 at pg 277 per Reid

“If the Tribunal were entitled to pronounce a final judgment against the taxpayer justice would certainly require that he should have a right to see and reply to this statement, but all the tribunal can do is to find that there was a prima facie case against him.  It is I think not entirely relevant to have in mind that it is very unusual for there to be a judicial determination or the question whether there is a prima facie case.  Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him.  So there is nothing inherently unjust in reaching such a decision in the absence of the other party.

Even where the decision is to be reached by a body acting judicially there must be a balance between the need for explanation and the need, to give full opportunity to the defendant to see the material against him.

In LEWIS v HEFFER & OTHERS [1978] 3 AII ER 345 at page 304 per Lord Denning at page 355 held as under:-

“Where suspension was made as a holding operation pending enquiries the rules of natural justice did not apply because the suspension was done as a matter of good administration.  But then comes the point! Are NBC to observe the rules of natural justice.  In JOHN v B REES referred to in the case of LEWIS cited above at page 364 Megarry J held that they were.  He said:-

“suspension is merely expulsion protanto.  Each is penal and each deprives the member concerned of the enjoyment of the rights of membership or office.  Accordingly, in my judgment the rule of natural justice prima facie apply to any such process of suspension in the same way that they apply to expulsion”

Those words apply no doubt, to suspension which are inflicted by way of punishment, as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice.  But they do not apply to suspensions which are made as a holding operation, pending inquiries.  Very often irregularities are disclosed in a government department or in a business house and a man may be suspended on full pay pending inquiries.  Suspicion may rest on him and so he is, suspended until he is cleared of it.  No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth.  The suspension in such a case is merely done by way of good administration.  A situation has arisen in which something must be done at once.  The work of the department or the office is being affected by rumours and suspicion – the others will not trust the man.  In order to get back to proper work he is suspended.  At that stage the rule of natural justice do not apply.”

The prayer for mandamus against the 1st respondent is therefore without merit for the same reasons and also for the additional reason that mandamus does not lie where a duty has already been performed as in this case where the duty to make representation has already been performed – Mandamus lies only for unperformed statutory duties and not on those already performed.

As against the 2nd to 6 respondent the prayer for prohibition lacks merit in that the respondents have so far acted in terms of the jurisdiction conferred on them by the President pursuant to S 62 of the constitution.  Prohibition will ordinarily issue when a body lacks jurisdiction or act without jurisdiction.  This has not been shown or even failure to adhere to rules of natural justice on the part of 2nd to 6th defendants.  What is clear is that the criteria established under S 62 has been complied with and if there are allegations that some members of the Tribunal are biased or likely to be in a conflict of interest situation, the Tribunal itself can deal with the matter if an application is made before it and it is not a  matter for this court.

ISSUE F:  NO CONSTITUTIONAL APPLICATION EFFECT OF

Under the provision of the Constitution judicial orders are only contemplated under Chapter 5, and in particular contraventions falling under S 84 of the Constitution but even then Constitutional applications in terms of rules made under the Section must be made failing which any such remedies would not lie at all.

Interpretation to the Constitution also falls under S 67 but only as a referral from the subordinate court in criminal matters.  Any other contravention or remedy under the Constitution has as a matter of practice been brought to the court by way of a Originated Motion.

The applicant has failed to demonstrate that he has properly brought the application in accordance with the aforesaid or that what he seeks to achieve is amenable to judicial review.  I find that there is no cause of action under the Constitution for the above reasons and the prayers sought must fail on this ground as well.

ISSUE G – WAIVER

It is not disputed that the applicant did take part in the proceedings of the Tribunal on 17th, 18th, 28th and 29th June 2004 where one witness a Mr Mwachai was fully examined in Chief and also cross examined before this application was filed and heard.

On this I find that the applicants must have waived her right to challenge he tribunal proceedings both under the Constitutional jurisdiction and even judicial review jurisdiction.  A party who consciously and upon advice by consent takes part in proceedings must be deemed to have waived her right to challenge the validity of any such proceedings.  I further hold that even constitutional rights can be waived.  One illustration of this is the now almost universally accepted of principle of plea bargaining.  This is obviously based on waiver and so is the effect of the entering of a plea of guilty in criminal cases.

On the issue of waiver I find that since there is no total lack of jurisdiction the case of THE COMMISSIONER OF LANDS AND MINISTER FOR LANDS AND SETTLEMENT v COASTAL  AQUACULTURE LTD

C A  252 of 1996 is not binding on me because in the instant case the tribunal does indeed have jurisdiction.  Where a Tribunal has jurisdiction participation in the proceedings as has happened in the case is clear evidence of acquisence and waiver.  The court is therefore perfectly entitled to follow the reasoning of the case of MASAKA GROWERS & MUMPIWAKOMA GROWERS 1968 E.A. 258 which was quoted in the  AQUACULTURE  case.

Where at page 264 SHERIDAN J. held:

“Prohibition  was only for excess or absence of jurisdiction.  It does not lie to correct the course, practice of procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings  11HALSBURYS CASE3rd Edition P.114, I do not agree with counsel for the applicants submission that it lies as of right as there is no  defect of jurisdiction apparent in the face of the proceedings.  HALSBURYS  ( ibid p.115).  It is a discretionary remedy and the court may decline to interpose by reason of the conduct of the party.  Counsel relies onFARQUHARSON  v MORGAN(1894) 1QB  652 as authority for the proportion that acquiescence in the exercise of jurisdiction by the inferior court is no bar to the issue of prohibition but in that case there was a total absence of jurisdiction apparent on the face on the proceedings which is not the case here.

On the other hand inMOUFLET v WASHBURN(1886) 54 L 716 Sir JAMES HANNEN following ERLE J inJONES v JAMES(1850) 1 LM & P 65) decided that the defendant, by once appearing before the county court Judge had waived the right of examining into the process by which he had been summoned to appear, and that a subsequent application by such defendant for a writ of prohibition to prevent the judge of the county court from proceeding in such suit must be refused.  A court may also decline to interpose if there is doubt in fact or  law whether the inferior tribunal is exceeding it jurisdiction or acting without jurisdiction.  “HALSBURYS LAWS(3rd Edition) P.116”

It is clear to the court that the participation of the applicant and her was Counsel in the proceedings on the dates indicated where evidence of one key witness has been completed does constitute waiver and the subsequent challenge concerning the tribunals jurisdiction is barred by acquiesce and waiver and this application must fail on this ground as well.

The reason why there was no waiver in AQUACULTURE case was because they was total lack of jurisdiction and the case is clearly distinguishable from the facts of the instant case S 62 having been properly invoked and its invocation conferring jurisdiction on the Tribunal the applicant is therefore deemed to have waived her right to challenge the proceedings of the Tribunal.

ISSUE “H” – JUDICIAL ORDERS AND THEIR SCOPE

1. In the case of REPUBLIC v KENYA NATIONAL EXAMINATION COUNCILexparte GEOFFREY GATHENJI AND NINE OTHERS C .A 266 of 1996 the Court of Appeal considered the scope of the Order of Certiorari and delivered itself at page 10 as under:-

“Order of Certiorari lies, not only for excess jurisdiction or absence of it but also for departure from rules of natural justice – It does not however lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of proceedings”

At page 16 of the same case the court in discussing decisions made stated:

“Only an order of Certiorari can quash a decision already made and an Order of Certiorari will issue if the decision is made without or in excess of jurisdiction, or where rules of natural justice are not complied with or  such like reason”

Turning to the instant case the publication of a gazette notice, the appointment of a tribunal and the formulation of rules to regulate the tribunal cannot by any stretch of imagination violate the requirements of rules of natural justice nor has any of these actions or events be said to be in excess of jurisdiction. On the contrary they promote and strengthen the application of rules of natural justice.

2)   The Applicant has also sought an order of prohibition.  Here again it is trite law that prohibition looks to the future not the past.  A past decision of the tribunal cannot be attacked or interfered with by an order of prohibition – see page 14 of the KENYA EXAMINATIONS  decision (ibid).

It follows therefore where a decision has been made whether in excess of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be effective against the decision made.  This point was made by the Court in STANLEY GITHUNGURI CASE CRIMINAL APPL No 271  of 1988 where it was held:

“An Order of Prohibition would be ineffectual against the conviction because such an order would not quash the conviction… the conviction would only be quashed by way of an appeal…that in our understanding is the efficacy and scope of an order of  prohibition.”

This Court cannot therefore quash the tribunal’s decision.  If there was any remedy due it could also be  pursued under S 84 (1) of the Constitution by a direct application.

2.      Turning to the applied for Order of Mandamus at page 14 of the KENYA EXAMINATIONS COUNCIL case (ibid) the Court of Appeal at page 12 cited HALSBURYS LAW OF ENGLAND, 4th Edition Vol.1 at page 127 para.128 where the law is set out as follows:-

“The Order of Mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed at an inferior tribunal requiring him or them to do some particular thing therein specified which  appertains to his or their office and is in the nature of public duty”

Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done in all cases where there is a specific legal right and no ‘specific legal remedy for enforcing that right and it may issue in cases  where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and ineffectual”

As against the decision of the Tribunal there is a specific legal remedy by way of appeal or by way of bringing a direct constitutional application in the High Court setting out the Contravention as required under S. 84 of the Constitution.

In the course of the submissions the applicant has not demonstrated to the court that the above two options are less convenient, less beneficial or less effectual.

In HALSBURYS LAWS OF ENGLAND 4th Edition Vol. 1 para. 129 the learned authors have observed.

“Secondly the Order of Mandamus must be directed at no more to do that which the party against whom the application is made is legally bound to perform where a general duty is imposed a mandamus cannot require it to be done.”

It cannot require those it is directed to do more than they have been empowered to do. Yet this is what the applicant is asking of the Tribunal.

The Tribunal did not constitute itself.  It was constituted by the President.  The Gazette notice nos. 96, 378 and 8829 which are under challenge are under the President’s hand or signed by him.

In the light of what I have stated above and in view of the provision  of S.14 of the Constitution I find that a Mandamus would not lie.  The President’s  immunity extends to both official and unofficial acts while in office although in respect the unofficial acts he could be held liable after office.

If an Order of Mandamus is issued against the President who in any event has not been enjoined and cannot issue for this reason as well and he disobeys the order how does the court enforce it while S 14 bars the only known remedy, that is, the institution of contempt proceedings.  As the Constitution vests Executive Powers in the President there are strong Constitutional reasons for the immunity.

Finally as stated above as regards the Chief Justice such an Order cannot issue for the following reasons:

(1)     The alleged duty has already been performed.

(2)     The Judge does not sit in an inferior court and an order of mandamus issues against inferior tribunals public bodies and authorities.

(3)     The legal remedy provided for the representation by the Chief Justice is the tribunal.

ISSUE 1 – STATEMENT AND VERIFYING AFFIDAVIT

Under Order 53 the Statement should contain the description of the applicant, the grounds relied or and the relief sought.  In the instant case the applicant has set out facts in the Statement and sworn nearly a four paragraph verifying affidavit devoid of facts.

Following the Court of Appeal decision in STEPHANO OWAKI  t/a MIRENGA FILING STATION CA 45/2000 the Court of Appeal held that such a defect is fatal to the application for judicial review and went on to dismiss the application.  The reason is that a Statement has no evidential value and without it being verified by the person making the statement and application has no evidence upon which the court can adjudicate upon.

This case has been followed in the following cases:

(1)     LAWRENCE NGINYO KARIUKI v COUNTY COUNCIL OF KIAMBU AND ANOTHER H.C. MISC. NO. 1446 OF 1994 Ole Keiwua J.

(2)     PAUL IMISON v Attorney General & 3 OTHERS H C Misc Application No 1604 of 2003 by this court.

On this ground alone the entire application is incompetent and must fail as well.

CONCLUSION

It is quite clear that the applicant has failed on each of the critical issues set out above and for this reason the application is dismissed.

As regards the costs I decline to Order the Applicant to pay (that is costs follow the event) for the reason that the issues contested are of great legal importance to the country and to the growth of law in the areas touched upon by the court.  It is also clear to the court that there is need for amendment to the Constitution or proper attention given to the issues raised in the proposed Constitution to better secure the tenure of office of Judges including their removal.  For this reason I would recommend the process of removal to be set out in the Constitution in greater detail, preferably in 5 tiers as in Tobago with at least 3 tiers incorporating the right of fair hearing.  If this is not possible I would recommend we go the Indian way of having elaborate provisions in the Constitution and also setting out the actual process in a Judges Inquiries Act.

There is also a strong case for entrenching the Judicial review jurisdiction in the Constitution.

For this reason I make no Order as to costs.

May I conclude by thanking counsels for their considerable research, diligence and skill demonstrated during the hearing.  In particular I  wish to single out Dr Lumumba and commend him for his very clear, precise and authoritative written skeleton arguments.

Dated at Nairobi this 22nd day of April, 2005.

J G Nyamu

JUDGE

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENY AT NAIROBI

HIGH COURT MISC APPLICATION  NO 764 OF 2004

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW AND FOR THE ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUSIN THE MATTER OF ORDER LIII OF THE CIVIL PROCEDURE RULES

IN THE MATTER OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE DECISION MADE BY THE TRIBUNAL INVESTIGATING THE CONDUCT OF JUDGES ON THE 28TH MAY 2004 IN TRIBUNAL MATTER NO 1 OF 2003 RE; JUSTICE ROSELYN NALIAKA NAMBUYE

IN THE MATTER OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

IN THE MATTER OF GAZETTE NOTICE NO 8829 DATED 10TH DECEMBER 2003

IN THE MATTER OF GAZETTE NOTICE NO 96 OF 2004 DATED 6TH JANUARY 2004

IN THE MATTER OF GAZETTE NOTICE NO 378 OF 2004 DATED 19TH JANUARY 2004

IN THE MATTER OF A HEARING NOTICE DATED 30TH JANUARY 2004 OF THE TRIBUNAL OF INQUIRY ESTABLISHED VIDE GAZETTE NOTICE NO 8829 OF 2003

IN THE MATTER OF THE REPUBLIC

VERSUS

HON THE CHIEF JUSTICE OF KENYA  ...................  1ST RESPONDENT

HON JUSTICE (RTD) ABDUL MAJID COCKAR .....  2ND RESPONDENT

HON JUSTICE JOHN MWERA  ...................................  3RD RESPONDENT

HON JUSTICE LEONARD NJAGI  .............................  4TH RESPONDENT

HON JUSTICE DANIEL MUSINGA  ...........................  5TH RESPONDENT

HON JUSTICE ISAAK LENAOLA  .............................  6TH RESPONDENT

PROCEEDINGS

18. 6.2004

Coram:    P Kihara Kariuki Ag J

cc  Eric

Mr Simani for the applicant

I seek to stand over the application dated the 17th June 2004 to 24th June 2004.

P Kihara Kariuki

Ag Judge

Court:    Application dated the 17th June 2004 stood over to 24th June 2004 at 11. 00 am

P K Kariuki

Ag Judge

24. 6.2004

Coram:    P Kihara Kariuki Ag J

Eric court clerk

Mr Simani for the applicant on the chamber summons application of the 17th June 2004 under Order 53 seeking leave to file for order of judicial review by way of certiorari, prohibition and mandamus.  Supporters by the affidavit of the applicant, Lady Justice Nambuye made on 17th June 2004 or the statement of Facts and grounds also of the 17th June 2004.

Notwithstanding paragraph 15 of the statement of facts and grounds, I have full confidence in this court and the person .. as affidavit.

The application seeks leave to apply for judicial review for the chamber summons dated the 17th June 2004.  Read PRAYER a) for certiorari; b) certiorari, c) for prohibition – stated on 17th & 18th; and 28 June to 1st July Tribunal will be sitting; this is why we have come under certificate.  We have set out veritable c i) through viii) the allegations under investigate at the final these are RNN16 of the Bundle.  Prayer d) prohibition – Tribunal confers on ... jurisdiction under Gazette No 8829 of 11 December 2003 RNN15.  The last prayer is (e) for mandamus.

We also seek a stay under prayer 3 ad costs.

Grounds are numerous – summarized under grounds 1 -9 of the application.  Also grounds 10 ... incorporate the grounds submission before the .............. are reproduced in the statement of grounds and facts dated 17th June 2004.

Matters arise under s 62(5) of the Constitution of Kenya.  The decision to be determined is of what importance because it will either remove on reinstate Judges who have security of tenure.  How should one proceed under s 62(5) of the Constitution.

The Tribunal in the Ruling 28th May 2004 was misdirected itself and misinterpretation the contribution.  This is particularly us because Judges have no control of service other than the Constitution and the Judges worth of office.

Ground 3 of the application – we content that the Notice that appointed the Tribunal is null and void and on ultra vires the Constitution RNN15 Gazette No 8829 of 11th December 2003.  Section 62 of the Constitution does not grant the President powers purported to be granted in Gazette Notice No 8829.  Section 62(5) deals with the question of REMOVING a Judge.  There is no power to investigate conduct of a judge in the absence rules of Procedure under Section 62 of the Constitution, certain rules of natural justice must be followed.  We wish the High Court to determine what procedure should be followed so that the applicant is not prejuded.  Only subsection (7) of Section 62 envisages an investigation of the Chief Judges, not Pusne Judges.  Judges can only be removed for inability to perform their functions of office or misbehaviour.  The Ringera report was secret.  The reasons for suspension come five months after ie in January 2004.  Before establishment of Tribunal, Judges must have opportunity to answer to the allegations made against her.

Ground 6:  On page 29 and 30 of Ruling RNN18 – The President is bound by the recommendation of the Tribunal.  It is therefore an adjudicating authority.  In the Ruling, a Tribunal disagrees.  It rules that the system it is operating under is an inquisitional system.  The Tribunal sees itself as a Commission of inquiry  – see page 30 of Ruling.  -  section 62(4) is mandatory therefore Tribunal adjudication.

Ground 5 there is no express requirement under section 62 fundamental to  make its own rules of procedure.  Who makes the rules.  Is applicant entitled to participation in the making thereof?  What guides them?  The rules made by Tribunal are ultra vires the Constitution.  RNN 15(2) eg Evidence Act excluded.  Rule 6 enables the Tribunal to exclude whichever witnesses it deems expedient.  The Constitution does not allow Tribunal to consider/investigate conduct but must restrict itself to the removal of the Judge.

P Kihara Kariuki

Ag Judge

Court: Application dated 17th June 2004 stood over to 11. 00 am on the 25th June 2004.

P Kihara Kariuki

Ag Judge

Page 38 – “On this point. Tribunal not empowered to return a verdict of guilty and not guilty” – Section 62(4) of the Constitution specifically requires a verdict either way.  On  pages 34 and 35 of the Ruling.  Ground 7.

I urge stay.  The court can direct that main application be heard expeditiously.  The applicant is not afraid to confront the Tribunal provided the process is not flawed – here the need to have matter decided by the High Court.

For the record, applicant also raised objection to DPP being the assisting counsel to the Tribunal – copies of interest – if criminal proceedings are necessary after the Tribunal, DPP would be presenting – bias – of Ruling page 41.  In the Rules of Procedure RNN 15 – assisting counsel to prefer list of allegations (Rule 9(2)) why when the allegations had already been compiled by Chief Justice and referred to the President.  Rule 3 – The Tribunal was appointed of 5 members – they have given themselves a quarum of 3 (Rule 3).

I seek the order as prayed in the application.  We wish jurisdiction to be determined by High Court.

Court:     Ruling 28th June 2004 at 2. 30 pm.

P Kihara Kariuki

Ag Judge

25. 6.04

Coram:    P Kihara Kariuki Ag J

Eric court clerk

Mr Simani for the applicant

I refer to the Ruling of the Tribunal at page 17,18 and 19 (RNN 18) does Gazette notice comply with s 62 (5) of Constitution – the Tribunal read (page 18) that tribunal was not seen to state everything  verbally.  At page 19 – it does not matter that the gazette notice is unclear – it satisfies s 62(5) of the Constitution.  Application disagree with the interpretation of the tribunal.  The tribunal is a flawed process.  The tribunal is blind.  We seek this court’s intervention because the tribunal is inferior to this court – section 123 of the Constitution.  S 123(8) – No provision etc.  The Ruling also read at page 20 that it is within a Constitutional not personal argument that representation made by the Chief Justice must be similar to the application at the time they are made to the President.  Applicant disagrees; a Judge must be told that the Chief Justice has made complaints to the President or the nature of those complaints priorto the tribunal being set up.  This is a rule of natural justice – must be fair or reasonable.  A flaw in even procedure will prejudice the applicant.

Page 28 of Ruling:

3.      Rules of providence are necessary for ordinary conduct more for the benefits of the applicant.  I agree with the statement but the Rules in RN 18 are not.  Rules 5 and 11 of section 77(10) of the Constitution.  Rule 6.  These are not for the benefit of the applicant.  Rule 18 power of amendment is power to change the goal posts which is unfair.

Pages 32 or 33 showed that there have been a separate gazette notice for each Judge on the allegations?  Tribunal at page 32 ruled:  Gazette not intended to inform public of details of this behaviour.  The applicant must be given details of changes so applicant knows what case she has to meet.  Ruling p 33 applicant not prejudiced.

4.  Applicant has questioned the membership of the Tribunal.  Section 62 (5) (i)-(iii) we argue that it utmost importance that any apparent perceived bias in the Tribunal must be removed notwithstanding member met qualification under section 62(5) 0 cf page 37 Ruling – we object to Judges Cockar or Mwera as being witnesses of the applicant.  Ground 9.  There must b a process to allow applicant to vet (Mr Stephen Mwenesi joined the provisions at this stage at 12 noon).

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENY AT NAIROBI

HIGH COURT MISC APPLICATION  NO 764 OF 2004

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW AND FOR THE ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUSIN THE MATTER OF ORDER LIII OF THE CIVIL PROCEDURE RULES

IN THE MATTER OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE DECISION MADE BY THE TRIBUNAL INVESTIGATING THE CONDUCT OF JUDGES ON THE 28TH MAY 2004 IN TRIBUNAL MATTER NO 1 OF 2003 RE; JUSTICE ROSELYN NALIAKA NAMBUYE

IN THE MATTER OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

IN THE MATTER OF GAZETTE NOTICE NO 8829 DATED 10TH DECEMBER 2003

IN THE MATTER OF GAZETTE NOTICE NO 96 OF 2004 DATED 6TH JANUARY 2004

IN THE MATTER OF GAZETTE NOTICE NO 378 OF 2004 DATED 19TH JANUARY 2004

IN THE MATTER OF A HEARING NOTICE DATED 30TH JANUARY 2004 OF THE TRIBUNAL OF INQUIRY ESTABLISHED VIDE GAZETTE NOTICE NO 8829 OF 2003

IN THE MATTER OF THE REPUBLIC

VERSUS

HON THE CHIEF JUSTICE OF KENYA  ....................  1ST RESPONDENT

HON JUSTICE (RTD) ABDUL MAJID COCKAR ...... 2ND RESPONDENT

HON JUSTICE JOHN MWERA  ...................................  3RD RESPONDENT

HON JUSTICE LEONARD NJAGI  .............................  4TH RESPONDENT

HON JUSTICE DANIEL MUSINGA  ...........................  5TH RESPONDENT

HON JUSTICE ISAAK LENAOLA  .............................  6TH RESPONDENT

RULING

Before me is an application dated the 17th June 2004 brought by way of Chamber Summons under Order 53 of the Civil Procedure Rules in which the applicant, the Honourable Lady Justice Roselyn Naliaka Nambuye seeks leave to apply to this court for orders for judicial review for certiorari prohibition and mandamus as is more particularly set forth in prayer 2 of the application.

The application is based on the nine grounds stated therein and on the further grounds as particularized in the statement of facts also dated the 17th June 2004 and supported by the affidavit of the applicant also made on the 17th June 2004.

The background, facts and circumstances giving rise to the application are well detailed in the said statement of facts and grounds as well as in the applicant’s said affidavit and need not be repeated herein.  It suffices to summarise them thus:-

a)  that the applicant is the subject of a hearing, being Tribunal matter No 1 of 2004, by a Tribunal to Investigate the conduct of Puisne Judges appointed by His Excellency, the President under the powers in that behalf confessed by section 62(5) of the Constitution of Kenya vide Gazette Notice No 8829 dated the 10th December 2003 and published on the 11th December 2003; and

b)  that the applicant raised preliminary objections before the Tribunal, which objections are reproduced in paragraph 9 of the said statement of facts and grounds, and being dissatisfied with the Ruling thereon of the Tribunal dated the 28th May 2004, the applicant filed the application now before me seeking leave to apply for orders, inter alia, of certiorari to quash the decision of the Tribunal as contained in the said Ruling of the 28th May 2004.

At the hearing of the application, and given that my seniority and experience as a Judge is far lesser than that of the applicant, I enquired from Mr Peter Simani, learned counsel for the applicant whether the applicant would have any objection to my hearing the application in light of paragraph 15 of the statement of facts.  Mr Simani assured me that the applicant did not have any objection whatsoever.

Having considered the application in light of the numerous grounds upon which it is promised as well as the applicant’s said affidavit in support thereof in conjunction with the submissions of learned counsel for the applicant, and adopting the principles of law now well established and settled as restated and enunciated by the court of appeal in Aga Khan Education Service Kenya v Republic Through Ali Seif and Three others (Civil appeal No 257 of 2003) (unreported) that “in order to enable a Judge to grant leave under order 53, there must be prima facie evidence of an arguable case”, I am satisfied on the material now available before the court without going into the matter in depth that the applicant has an arguable case for granting leave.  Accordingly, leave, in terms of prayer 2 (a) (e) inclusive of the application is hereby granted.

Having granted leave, I now consider prayer 3 of the application that the grant of leave do operate as a stay of the proceedings of the Tribunal.  In doing so, I note that notwithstanding that the Tribunal in its Ruling of the 28th May 2004 ruled on all and several the applicant’s preliminary objection before the Tribunal as reproduced in paragraph 9 of the statement of facts and grounds (as summarized in grounds 1 – 9 inclusive of the grounds set out in the application), the applicant raises issues that the Tribunal does not have jurisdiction to proceed with any proceedings thereunder by reason, inter alia that the provisions of section 62(5) of the Constitution have been violated.  I have considered most carefully, grounds 3-9 inclusive of the application in conjunction with the Tribunal’s ruling thereon as contained I particular at pages 17,18,19,20,21,27,28,30,32,33,34,35,37,38,39, and 41 of the Ruling of the Tribunal dated the 28th May 2004.

While it is clear that there are several sentiment issues under the Constitution of Kenya that the Tribunal and the applicant are unable to agree upon, it is equally clear that I cannot, and must not, without usurping the functions of the Judge before when the substantive application for judicial review is brought for hearing consider or decide on the merit or otherwise as to whether or not the applicant will succeed on the issues Her Lordship has raised.  Nonetheless, where my question as to the interpretation, of the Constitution arises, this court has a duty to determine such questions at the earliest opportunity, finding, as I do, that such a question has arisen in the application before me, I rule that it must be determined before any further proceedings before the Tribunal to avoid a possible miscarriage of justice.  I would, therefore, allow prayer 3 of the application and grant a stay accordingly.

I so order and further that

a)  the applicant do file and serve her Lordship substantive Notice of motion for judicial review within the next seven (7) days of the date hereof;

b)  the respondent’s do file and serve their respective respondent to the Notice of motion for Judicial review with further (14) days of service of the motion;

c)  that subject thereto but immediately thereafter, the motion he mentioned before the Hon the Chief Justice on such date to be taken at the Registry as shall be convenient to His Lordship at his Lordship’s discretion in order that the Hon the Chief Justice may grant such orders and give such directions as he shall deem appropriate to expedient or to the early hearing of the application for judicial review and all such connected and indicated thereto.

28. 6.04

Coram:    P Kihara Kariuki Ag Judge

Eric court clerk

Mr Steve Mwenesi and Mr Peter Simani for the applicants

Ruling dated signed and read in open court.

Kihara Kariuki

Ag Judge

6. 7.04

Coram:    P Kihara Kariuki Ag Judge

Eric court clerk

Mr Peter Simani for the applicant

I have not been able to serve yet in accordance with the orders of the court granted on the 28th June 2004 hence the application dated the 6th July 2004.  The circumstances are set out in the 4 grounds in the application as well as in my affidavit made on the 6th July 2004.  I seek the prayers in the application.

P Kihara Kariuki

Ag Judge

Court:    Prayer 1 and 2 the application dated the 6th July 2004 are hereby granted.

The period of service is also hereby extended in terms of prayer 3 of the application and it is further ordered that in addition to serving the 2nd to the 6th respondents (inclusive) the Notice of Motion dated the 5th July 2004 he served also on the secretary to the Tribunal, Mr Muchai Lumatete.  Costs may be in the main application.

P Kihara Kariuki

Ag Judge

26. 7.2004

Mr Simani advocate for the applicant

Case fixed for mention on 28th July 2004 before the Hon Chief Justice at 9 30 am.

Signed

Deputy Registrar

28/7/2004

Coram:    J E Gicheru – Hon C J

Mr S M Mwenesi

Mr P L Simani for applicant

M/s Kimani Muthoni for 1st, 2nd, 3r, 4th, & 5th Respondents

J Andanje – court clerk

Order:

Matter to be mention before the Presiding Judge of the Constitutional and Judicial review Division of the High Court of Kenya in Nairobi on 20th September, 2004 with a view to taking a hearing date or dates.

J E Gicheru

Chief Justice

20-09-2004

Coram:    Nyamu J

Njoroge court clerk

Mr Simani for the applicant

Mbiyu  Kimani holding brief for the respondents

Mr Simani

We apply for a hearing date.

Mbiyu

Miss Kimani not available until October.  Early hearing dates not possible.

Order by consent:  Mention Monday 27th September, 2004 at 9 00 to take a hearing date.

J G Nyamu

Judge

27-09-2004

Coram:    Nyamu J

Njoroge court clerk

Mr Simani for the applicant

Mr Mwaniki holding brief for the respondents

Kimani

Order by consent:  Notice of Motion dated 5th July 2004 to be heard 24th, 25th November, 2004 respectively this being the earlier dates available to the Attorney General.

J G Nyamu

Judge

Mr Simani:

I apply for leave to file a further affidavit in the next 2 weeks to incorporate further proceedings at the Tribunal.

Mr Mwaniki

No objection

Order

Leave granted.

J G Nyamu

Judge

24-11-2004

Coram:    Nyamu J

Mwangi court clerk

Mwenesi/Simani for the applicant

Mwaniki Kyalo for the 1st respondent for the 2nd to 6th respondents

Mr Mwaniki:

We were served on Friday 19th November, 2004 with a bulky Affidavit and we would like to respond to the same.  Personally I was given the affidavit this morning and I was not able to go through it.  We would need to reply and I do apply for an adjournment.

Mr Mwenesi

Since the respondent counsel wants to consult the Attorney General personally and in view of the importance of this matter we are not opposed to the adjournment.  Some of the points raised in the new affidavit arise from the later Hansard reports and it is fair to allow the respondents to respond.  Although the matter was allocated hearing for today (24th November, 2004) and 25th November, 2004 it is not possible for the attorney General to respond.

Mr Simani

I apologise to the respondent counsel for serving him on Friday.  Reports from courts were received very late hence the late service.

RULING

This matter was allocated to me by his Lordship the Chief Justice on 28th July 2004.  The dates allocated were today 24th November, 2004 and 25th November, 2004.  It is important to stress that it is in the interest all concerned to proceed with the matter expeditiously in view of the fact that the matter touches on a Constitutional job holder and the proceedings at the Tribunal already commenced before they were stopped by a High Court order.

In view of the above my immediate inclination was to refuse or declare the adjournment.  However in view of the Attorney General application that he needs time to consult and respond to what appears to the a bulky affidavit filed on 19th November 2004 (and which the court had not seen until the morning) I will reluctantly grant the adjournment.

I order that the matter proceeds on 25th January 2005 and 26th January 2005 at 10. 30 am.  I give/make no orders on costs.  In view of the Registry delay in releasing some of the documents required.

J G Nyamu

JUDGE

25/1/2005

Coram:    Nyamu J

Njoroge court clerk

Mwenesi/Simani for the applicant

Lumumba/Mwaniki for the respondents

Kyalo

Mr Mwenesi

The application before the court is dated 5th July 2004.  It is by way of Notice of Motion – under o 53 Civil Procedure Rules.  It is an application for Judicial review.  Leave was granted on 28th June, 2004 and the relevant orders were extracted and served on the Tribunal.  Order on record Leave was granted to apply for certiorari to call up the decision of the Tribunal on 28th May 2004 because:-

1.    It was contrary to court – contrary to rules of natural justice

2.    To apply for certiorari to quash Rules of the Tribunal

3.    To apply for prohibition to prohibit the 2 to 6 respondents to investigate the conduct of the Judges

4.    To apply to prohibit 2nd to 6th respondents to prohibition to investigate the conduct of the Judge pursuant to Tribunal decision on 28th May 2004

5.    Leave to apply for mandamus directing the Chief Justice to observe the rules of natural justice afford her the facility of the rules of natural justice

- to follow rules of natural justice

- Constitution.

Statement filed 17th June 2004.  The grounds relied on are set out in the statement.

Application is supported by Affidavit of Lady Justice Nambuye filed 17th June 2004 and further affidavit sworn on 19th November, 2004 (filed with leave of court).

The decision which is attached in these proceedings is the decision of the Tribunal – RNN 18.  It is founded on points of objection raised at the Tribunal.

I wish to draw attention of the court to the ruling of Mr Justice Kariuki when he granted leave – from pages 5 applicant has an arguable case.

-  there is a Constitutional point raised.

-  Kunster case court is concerned with procedural safeguards proceedings of the Tribunal were stayed.

The decision of the Tribunal is contrary to the Constitution of Kenya – to the rules of Justice – to the legitimate expectations of Lady Justice Nambuye

Constitution of Kenya

RNN 17 – Notice of conceivable objection the decision is contrary to the Constitution ground repeated in para 9 of the Statement of Facts.  Grounds put before the Tribunal are also principal grounds in this courts.  Under s 62 that Tribunal was never ever properly appointed.  The mandate given to it by the President was also in clear violation of the Constitution and the known practice of other Commonwealth countries.  At page 5 – Tribunal not properly appointed under s 62.  Gazette Notice 8829/2003 completely raised the Constitutional mandate of the Tribunal.

Ground No 1 RNN (17)   -  Tribunal dismissed and said that they were properly appointed by the President.  Page 13 of the Ruling of the Tribunal interpreted the Constitution in a liberal manner.

What is the object and purpose of s 62 of the constitution.  Is the manner in which it came into being Constitutional.

Gazette Notice as at RNN 15 s 62 of the Constitution has the marginal note of tennure of office of the Judges of the High Court.  The Interest of Parliament in enacting this provision is to deal with the tenure of office of the Judges of the High Court.

A Judge of High Court shall vacate office when he attains the age prescribed by Parliament.  This is also subject to the section.  The age is that prescribed by Judicature Act s 9 ie 74 years.  This is part of the legitimate expectation.  The President purport to invoke s 62(5) and 6 and s 64(3).

Lady Justice expected to be a Judge until age of 74 – subjected to section 62.  It is by Gazette Notice No 8828 that she first came to know that something was going to interfere with her tenure of office – hence the raising of objections with those appointed under s 62(5) and (6) that their appointment was improper.  S 69 of the Interpretation and General Provisions Act in the prima facie evidence that something in law -  publication shall be prima facie evidence was all that the President had to say about the tenure of the Judge Proceedings of 4th March 2004.

What is expected of the Chief Justice.

·   Judge must be informed.

·   Those are the written rules of the Constitution.

·   These are written connections within the Common law world.

·   The first notice in the Gazette Notice 8828 of 11th December, 2003 next by Gazette Notice of 6th January 2004 – this is the first warning.

·   There is no contract for a Judge except the provision of s 62 and the oath under

·   Removal only

o   Inability to perform the functions of his office

o   Misbehaviour and shall not be removed in accordance with this section

A Judge can also remove himself.

Misbehaviour

At page 6 of the ruling did the use of different words render the notice void.  They decided that it was not necessary to use the exact words.

-  the notice directs the Tribunal to investigate the conduct of the Judge

For this reason the Tribunal is investigating the wrong matter and likely a wrong report.

.  There is no replying affidavit from the Attorney General or the Tribunal

A Judge goes about her office knowing that should she fall under any of the two groups in fault or misbehaviour – the process for removal would start

-  not to investigate the performance of office or misbehaviour but the conduct

At page 13 the answer to this querry appears.  Use of the word “conduct” instead of the words used in s 62(3)

Chief Justice makes representation to the President that the question of removing the Judge under this section ought to be investigated ie it is the question of removing the Judge which ought to be investigate.  This is correct according to us.  It inquires into facts and reports to the President.

In the Gazette Notice the words used are in more than one part is conduct not misbehaviour.  It removes the word infirmity.  The basis of their Jurisdiction is based on this – misbehaviour denotes a stronger word and more degrading.  The Constitution is not asking the President to be polite.  The Constitution says you will be removed for misbehaviour.

To ensure the President that he was “kinder” to the Judge.  On this ground alone he misdirected himself.  Do not beat about the bush – find that degrading matter you wish to excuse.

S 3 of the constitution provides that to the extent of the investigating all that the President did was void.

As the tribunal was not mandated to recommend removal it was not properly constituted and this is our case before the court.  Members appointed to investigate the conduct of the Judge.

The Judges have misdirected themselves as to their function.  Conduct could also involve infirmity.  They misdirected and misapplied and misinterpreted the Constitution of Kenya.

The word conduct is very open.

The question is what is to investigated within the meaning of S 62 when the President says that her conduct is to be investigated.  They say there be guided by the purpose and common sense.  The word “conduct” in the context of s 62 is nonsersical for want of a better word.  What is the mandate of this Tribunal.  That mandate does not exist anywhere in S 62.   S 62(3) is read again.  S 62(4) a Judge shall be removed from office if a Tribunal appointed recommends – for inability or misbehaviour.

The question of removal was never referred to the Tribunal.  The question is a drastic one.  There is a big difference between conduct and misbehaviour.  See s 62(3) and s 62(5).  There is an injunction that he shall not be removed except in accordance with the section.

The judges said that since the President has cited s 62 this is good enough.  The Gazette does not have to be in the actual words used in s 62.  A Gazettee Notice is not prescribed.  It must be taken that the Chief Justice must have recommended her removal and we cannot enquire concerning the communication between the Chief Justice and the President.

At page 13 they say  the process is initiated by the Chief Justice.

S 62(5) starts with the word “f”.  It is a small word but carries a lot.  If the Tribunal has commenced then it must be stopped because they are not proceeding Constitutionally.  The Tribunal did consider matters of law.

The President says that the question which has arisen is the conduct of a Judge and not the removal – see the para. 4 of S 75 where property cannot be taken away except as per this section.

As under the Constitution there is no requirement of Gazette notice too much should not be read into the Gazette notice but we ask why use it – the President showed his hand and he should be treated just like anybody.  We are entitled to inquire into the President’s advisors got it wrong.

Why was it difficult to inform the Judges that the question of removal has arisen in their case?  There is no difficulty in informing them.  There is no reference that even though there have arisen there is no reference to performance of office.

·   The Gazette does not comply with the constitution

·   It does not raise the proper questions under s 62 and that that has arisen for investigation by the Tribunal.  Wrong matter and wrong report would be the result.  We submit that certiorari should issue.  Adjourned to 2. 45 pm.

J G Nyamu

Judge

25-01-2005

Coram:  as before

It is possible for certiorari to issue because the powers given to the High Court are the process specified by s 60 of the Constitution.  Under the section the court has unlimited original jurisdiction under this section or any other law – the other jurisdiction is under the Law Reform Act.

Can an Act of Parliament be used to deal with matters under the Constitution.

In our situation order issue in the name of the Republic to ensure that whatever is done in the realm is lawful KADMAJ v MUNICIPAL COUNCIL OF KISUMU– all the three judges agreed new situations have to be dealt with as the law develops.

We have brought the Tribunal in this court.  The tribunal is a body available to this court jurisdiction because it touches on her tennure of office.

The procedure under s 84 – by way of an Originating summons is limited in terms of orders which can be given.

Judicial review is lawfully available through S 60 and if this was not available.

Under s 123(8) – a question as to whether the powers are being properly exercised or not – court cannot be precluded from inquiry into whether process has been properly exercised.  It is quite proper to bring the matter by way of Judicial review.  We care to ask if the process was proper.  A certiorari can quash what has gone wrong and prohibition stop  any further proceedings. – see Order 53 rule 7.  We are attaching those proceedings and processes.  O 5B rule 1(4).  Judicial review I submit is available for Constitutional questions.  If there is something inconsistence with the Constitutional Judicial review would be available.  Rationality of decisions is one area of availability to Judicial review.

Mr Mwenesi – 3. 30 pm

As Mr Mwenesi has received an urgent mater concerning a family hearing, he requests for an adjournment.  As the appeal is not opposed the adjournment is granted.

Order by consent

Each party to prepare skeleton arguments to be exchanged before the next hearing date and filed in court to guide submissions.  Hearing to continue on 11th February 2005 at 10. 00 am.

J G Nyamu

Judge

11-02-2005

Coram:    Nyamu J

Njoroge court clerk

Mr Simani for the applicant

Dr Lumumba for the respondents

Mr Simani

Matter fixed today for confirmation of hearing of application 764/2004 – after a hearing before you -  One of the orders made previously was for skeleton arguments and a list of authorities to be exchanged and filed by both parties.  On behalf of the applicants I was not able to prepare the skeleton arguments and to file and serve the learned counsel for reasons that were beyond my control.

I underestimated the time required I found myself lagging behind because of another Tribunal matter starting next week.

I have instructions to apply for an adjournment to enable me to complete the preparation which are in the final stages.  I seek an adjournment on this ground and on another ground I will a canvasss before you.

When we left court last time, my client brought to my attention certain decisions in particular Election Petition No 1/2003 in which your Lordship sat with Lady Justice Rawal and Judge Ochieng.  In that election matter your lordship had taken a position with respect to tribunal.  She appreciates your lordship position and a position your lordship is perfectly entitled to take.

However bearing in mind the importance of this matter and the fact that it is the first of its kind to raise issues on s 62 view the tribunal – issues of great importance and the decisions which are bound to affect pending tribunal cases there are about 3 or 4 pending cases which will raise substantially similar issues, the applicant feels that she should also benefit from the wisdom of more than one judge.  She humbly requests us to inform the court that she has great confidence in your ability.

However the weight of the matter to be decided without the benefit of divergent view which may be found or emerge from a multi bench.  Three judge or two judge matters is not without precedent HC Misc 271/85 GITHUNGURI – there was three judge bench and more recently the Goldenberg case – had a three judge bench.

We request that you allow us to apply to the Chief Justice for a two or a three man bench.  My request is purely us purely based on the weight of this matter and her wish to have more than one Judge.

We do realize that this application has been pending before the court for quite a while and that the court has on more than one occasion expressed the intention that the matter be concluded.

However the segments of the Constitutional law being canvassed before this court will affect both present and past members of the Judiciary – sitting members of the High Court or in the Court of Appeal – and the consequences could be monumental.  It is therefore our application for an adjournment this morning.

I took the belief after receiving this instructions.  I did also inform my learned friends and also instructed to the court this morning concerning our intentions to apply for adjournment.

We must give this matter all our attention because we owe it to posterity.  We deem it a great privilege to have the opportunity to be counsels in this matter.

Dr Lumumba

I wish to confirm that my good friend did ring me this morning and instructed an adjournment.

I am ready to proceed.  I have done my skeleton argument filed therein and served them.

However on the issue of the Constitution of two or three benches.

We must confine to O 53 of the civil Procedure Rules which deal with application for Judicial review.  There is no requirement for a judicial review be heard by two or more Judges.

It is arguable that the Constitution of two or three judges is an abortion.  Such matter ought to be heard by one Judge.

With due respect I do not necessarily agree that two heads are better than one.

As regards Election No 1/2003.

The circumstances were quite different – page 17-18.  I submit that you have taken a position in the matter – that was not ratio decided – it was gratuitous a clause given by the court and which cannot be ascribed to your lordship.

The only reason the application is made is to check your lordship.  It is not justified a two man bench or two man bench.

My learned friend admits that they are going to canvass Constitutional issues and in any submission he must live with what Judicial review offers i.e the one Judge.  Had he followed the path of Constitutional interpretation she would have enjoyed the benefit.  She has made her bed let her lie on it.

The age of the case has to be noted.  It was filed in June 2004.  Almost 7 months down the line.  My learned friend and the applicant ought to have known that the matter required a three man bench.  It is too late in the day for my learned Friend to argue on behalf of the applicants that the matter is weighty.   That realization coming too late in the day distitles the applicant from the benefit of a favourable ruling.

That application should be denied.

On the other question of adjourning this matter – my clients would like to proceed with the matter expeditiously but I leave the matter to the court.

Mr Simani

The record will show that at no time has the applicant been the cause of any delay.  Nor has the applicant made an application for adjournment.

The record shows that it is the respondents who has had difficulties.

Precedent supports that Judicial review matters have had more than one Judge.  The reason is not to check on your lordship.  We respect our role in the development of this area of law.  It not possible then so be it.

RULING

This court has been urged to adjourn this matter on two grounds

(1)  That the applicants have not finalized their skeleton arguments as per the preview order of this court and they have not therefore served it on the respondents counsel.

The court notes that the respondents on the part have duly complied with the order of the court by filing and serving the skeleton arguments.

(2)  The second ground is that the learned counsel for the applicant has received instructions from his client that this matter should preferably be heard by a bench of two or three judges because of its importance and gravity.

The addition reason is that I was involved in Election Petitions 1/2003 and could have formed my views on that.

After a careful scrutiny of the submission of the counsel I would like to deal with the second ground first.

Concerning Election petition 1/2003 the main point for determination was whether a suspended Judge could be recalled to continue with an election petition which he had started.  The question of the validity of the Tribunal did not come up for determination.  It was contended by the applicant that that court (ie the Constituted construed court should advise the Hon the Chief Justice to advise the President to revoke the suspension of the Judge.  The court held that it was being asked to interfere with the Tribunal.  The court went on to observe that the Tribunal was a creation of the Constitution of Kenya and that it was carrying out a Constitutional function.

The holding on this was that a judges suspension could be revoked at any time.

It is therefore quite evident from the above that the Constitutional court in which I had the privilege of sitting did not adjudicate on the validity of the Tribunal.  That court did not also adjudicate on the competency of the Tribunal or any of the issues that are being canvassed in this matter.

I as a Judge could not have formed any views on the validity of the Tribunal and my mind remains open concerning that point and it is one of the issues which are being canvassed in this current application.

I therefore decline to allow the application on this ground.  Indeed I am on record as having prompted myself on many occasions which I have even reason to fear any possible bias, conflicts or discomfort to disqualify myself.  In this situation I do not have any such feeling or fear.

I would also like to point out that before the matter was allocated to me as a single Judge the matter was mentioned before the Honourable the Chief Justice where all the parties were represented and the issue of a two Judge bench or three Judge bench was neither raised although all the issues I believe had fully crystalised before the alteration.  The gravity and the important should have been applied even at that time and ought to have been articulated them.

The third reason why the application for the Constitution of a two or three Judge Bench is extra ordinary is that the matter is part heard before me the hearing having commenced on 25th January 2005.  On this day the matter was adjourned while the learned counsel for the applicant was still on the feet having submitted the whole morning.  For this reason, it would be irregular and an abuse of the court process to stop a part heard matter so that a fresh Bench can be Constituted.  I believe that the suggested procedure or approach has no preceded in our courts.

Finally the grave Constitutional issue which the learned counsel for the applicant relies on as justifying the appointment of a more representative bench are issues which appear hotly contested by the respondent as is apparent from there skeleton arguments already filed in court.  The court concurs fully with Dr Lumumba the learned counsel for the applicant that procedurally applications for judicial review are heard by one Jude and there is no requirement in law to have a different bench.  While I agree with the learned counsel for the applicant that a two or three bench has been appointed to hearing Judicial review matters the Chief Justice has appeared  to have involved his administrative jurisdiction to appoint such bench in exercise of his discretion on where the parties have so requested at the mention before him and is he of the view that such a matter does warrant or justify the appointment of more than one Judge.

The applicants had such an opportunity when they appeared before him but they failed to make their request.  I hold and find that it is too late in the day to make such a request in open court and in a part heard matter.  Indeed with all due respect to the applicants counsel his application is mischievious taken the above circumstances in view.

I therefore totally reject this part of the application.

Taking to the application for adjournment in order to prepare his skeleton arguments, the learned counsel for the applicant has had ample time to prepare.  But because of the exceptional circumstances that the learned counsel for the respondent does not oppose the part of the application this court shall reluctantly allow the adjournment on condition that an early hearing date is taken in court this morning.

It is so ordered.

Order by consent.  Part heard to continue on 25th February 2005 at 10 30 am.

J G Nyamu

JUDGE

25-02-2005

Coram:    Nyamu J

Njoroge court clerk

Mr Simani for the applicant

Dr Lumumba for respondent

Mr Simani

Mr Mwenesi the lead counsel is unwell today and unable to lead me.  Mr Mwenesi is my senior by about 3 years.  With a lot of reluctance that I am compelled to apply for an adjournment.  Where counsel has been indisposed adjournments are ordinarily granted.

Skeleton arguments not filed but are right now being filed.

Dr Lumumba has served me with another support list of skeleton arguments.  I will need time to prepare this.

Dr Lumumba

I have to oppose the application but not without sympathy for Mr Mwenesi.

When there are two counsels in a matter, one of them should be able to proceed.  He has prepared skeleton arguments and has been involved all along.

I have always been prepared to proceed ever since I came on record.

Similar reasons given to the Tribunal in the part – application perhaps intended to stall.

Mr Simani

I understand my learned friends position.  I am disturbed that that there is a suggestion of stalling at the Tibunal.  No adjournment has even been sought by us – on the grounds that Mr Mwenesi or myself were involved.  We have handled 4 matters.

Yes this matter has delayed but I have no control over Mr Mwenesi predicament.  The client feels he is the best qualified to lead me in this area of law – I am his junior assistant.

RULING

The application for adjournment is based on the ground that Mr. Mwenesi the learned lead counsel for the applicant is unwell.  This court respects its officers word concerning the health conditions of their colleagues.  Mr Mwenesi has for this reason this court’s sympathy and best wishes for recovery.

However although Mr Mwenesi has been the lead counsel in this matter, his learned friend Mr Peter Simani has been involved in this matter from the beginning.  As counsel Mr Simani has appeared before me several times and without in any way adul... his skills he has often demonstrated the best skills possible in many areas of law.

Of course this court has in cases where counsels have been disposed especially when they act singly adjourned.  But the situation before me today is different because the court considers Mr Simani fully seized of the matter at hand.

The additional factor which this court has taken into account is that both sides/parties had agreed to file and serve skeleton arguments and I understand that the applicants have done so.  It would not be difficult for Mr Simani to rely on the skeleton arguments and for this reason I find and hold that there is no likely prejudice to the applicants case should Mr Simani be required to take up the matter of leadership – I think this is a typical case of Moses and Joshua in the bible – and Joshua must now lead the way.  That Joshua is Mr Peter Simani.

Adjournment is refused.

J G Nyamu

Judge

Mr Simani

I have reserved my client’s right to appeal against that order as we proceed.

Mr Simani

Learned counsel for the respondents though has notice of appointment confirms that he represents all the respondents including the 1st respondent ie the Hon the Attorney General.

Pursuant to this court order he filed his skeleton arguments and support skeleton arguments served to us and raised substantial matters thereon which he will use in response to our application by Notice of Motion.

From the record there is no replying affidavit filed by the 1st respondent.  Indeed, the only replying affidavit on record is by the secretary to the Tribunal one Mr Lunatete.  It is therefore going to be our position that the 1st respondent accepts and admits the contents of the affidavit supporting the Notice of Motion ie all the averments contained therein.

I do give notice to him that we shall object to those parts of his skeleton arguments touching on issues touching the Hon the Attorney General from the bar – given that there is no replying affidavit on record.

They have not asked that they file any affidavit although they are entitled to do so.

In the skeleton arguments in order to expedite my arguments I will only make reference to cases well known to the court and my learned friend.

Lord Diplock has defined Judicial review and what if enter CCSU and Minister of Court Service 1985 pg 374.

Quotation at page 410

-  An application for Judicial review has to show that a decision is tainted will illegality, irrationality procedural impropriety lacks proportionally  or does not meet legitimate expectations.

Your own decisions have made reference to it.  See ANN 18 is the decision we are going to attach all the 3 “1” are painted all over this decision.  Plus in not meeting the legitimate expectations of the applicant.

Question 1

Please have s 62 of the constitution before you – whether the respondent understood correctly the law that regulated them or the question put to them.  Did they understand correctly s 62?  We say they did not.

First sentence in the ruling refers to misconduct – right from the beginning they are conducting an inquiry into an allegation of a misconduct.  As was submitted by my learned senior Mr Mwenesi s 62 deal with the tenure of High Court and Court of Appeal Judges.  That is the direction of s 62 (1) (2) and (3).

-  a judge seems up - .. 74 or removed under s 62(3) for misbehaviour and we shall continually emphasise that the Tribunal is provided for under s 62 to inquire into the matter of the removal of a Judge.

In respect of puisne Judge of the High Court there is no reference in the inquiry to the conduct.

Subsection (5) makes reference to the Chief Justice making representation to the President.  What representations?

The Chief Justice in subsection (5) in our interpretation represents to the President matters that have given rise to the decision to remove a judge.  At the time the Chief Justice is making representations to the Head of State the only question he is posing to the President is that Judges must be removed e.g he has been convicted, found guilty of rape or guilty of criminal offence or conduct unbecoming and of necessity such representations are the product of investigations or inquiries that have already been made by the Chief Justice to make him come to that decision.

He goes to the President having formed a decision that Judge must be removed.  Thus includes inability to perform a function – Representation is not restricted to inability – could be due to infirmity of mind.  The Chief Justice must have carried inquiries and determination.

The President has no discretion (5).  The Tribunal must be appointed.  It is the Tribunal that decides.  It is not the function of the Tribunal to start behaving like an inquiry Tribunal like a Tribunal under the Inquiry’s act.

The Chief Justice has determined why inquiry committee or Board that those inquiries warrant the removal of a Judge.  We shall also argue the Chief Justice should have confronted the judge with the complaints or inquires made by the Chief Justice when coming to a determination that Judge is to be remand.

1)  Stage one – complaint against judges

2)  Stage two – the Chief Justice investigates that complaint that investigation may be administrative or a Board of Inquiry – He verifies the complaint

-  Under the rules of natural justice could confront the Judge with the complaint

3)  Judges do answer to the Chief Justice during the Inquiry stage

4)  Stage 4 – determination by the Chief Justice that Judges must be removed.  At this stage the Chief Justice can dismiss the complaint and it ends there – Frivolous or vexation.  At this stage – matter has not reached the public domain – see tenure of office of Judge s 62

5)  Stage 5 – S 62(5) Constitution now takes charge – it starts with a small word with massive hearing.  He then makes representation of facts and presents them to the President.  When the President receives then it is not for the President to look into them.  He appoints a Tribunal to look at them s 62 (5) (b) Tribunal inquires into the matter – ie the matter of removal of a Judge and then reports on facts – the facts that were given to him touching the representation of the Chief Justice.  The Tribunal will have before it.

a)  the representation – and only the representations which have made the Chief Justice to recommend the removal of a Judge

b)  Tribunal shall then inquire and recommend to the President whether that judge ought to be removed under that section.

Both s 62(4) and (6) is not given a discretion with respect to the recommendation of the Tribunal.

In effect the President rubberstamps the decision of the Tribunal.

The Tribunal is the guardian of security of tenure of a Judge and by extension the independence of the Judiciary.  This is the applicants interpretation of the position.

What is expected of the Tribunal

1. Tribunal weighs the facts – facts could be medical or misbehaviour.  The Tribunals decision shows that the Tribunal did not understand correctly the laws that regulates their powers.  It suggests that they are a commission of Inquiry – their job is mainly to inquire into allegation without making a determination.  The Tribunal does indeed make a determination of s 62 (4) and (6).

The Tribunal becomes an adjudicating authority – because it has adjudicated upon a right an expectation of a Judge.

The Tribunal ruled and in two subsequent rulings that it is not an adjudicating authority and that it is an inquisitional body – see page 30 of the ruling.  This tribunal is not a court nor an adjudicating authority.

“He does not have power to sit on judgment and pronounce judgment:  We ask what are they doing under subsection 4 and (6) – they pass judgment for removal or non removal.  They are clearly an adjudicating authority.  Clearly they do not understand their role – when they say that they are not an adjudicating authority.

The Tribunal is not just an essential – it is the process – it is not the Chief Justice or the President.  Instances where security of tenure does not expire

1. At page 74 – age

2. Death

3.  Tribunal adjudication.

Illegality and lack of understanding is apparent in the Tribunals ruling on its jurisdiction.  They do not understand the law.  This is an illegality.  They are entitled to have the Tribunal decision quashed by an order of certiorari.

Natural Justice

A tribunal has power to regulate its proceedings.  They have to adhere to rules of fairness.  The Gazetted rules – see the 1st rule quotes three the rules of Evidence – that the Evidence Act shall not apply.  They divide who is to come and who is not to come.  The allegations are drafted by the secretary under s 62 how can the secretary draft the allegations.

The first day the Judge is confronted with allegations not facts.  The subjects expectation is to find the facts as explained earlier.

They say that all the Chief Justice does is to give complaints to the Head of State.  At page 23 of the ruling by the Tribunal – we relied on REE v CRAGE PC decision.  Rees case is not of help because we do not have a Commission here.  Chief Justice not required to hold an Inquiry.  Tribunal has the power to carry out investigations?  Surely is this security of Tenure.  This is wrong. It is a complete misunderstanding of the rules.

You have to call the Judge first under the rules of natural justice.  This is what fairness is about.  What if it is frivolous – the “if” denotes a discretion on the part of the Chief Justice.  Shall I or shall I not take this to the Head of State.  He must satisfy himself on the weight of the complaints before presenting.  The Tribunal says everything begins within us.  It is an irrational interpretation of that section.  It is irrational argument.  A judges position is the highest.  Their approval denies the Judge due process.

At the time of suspension you do not know what to expect.  The Judge has to wait like this Judge for 6 months to know for the first time what is being alleged.  The Tribunal is the beginning and the end.  – At page 26 – the interpretation must be wrong – see argument 3(c) – they do not understand s 62 is supposed to do. It must give security of tenure.   It is the highest security any office can get.  Not even the President has that security.

Adjourned until 2. 30 pm

25-02-2005    at 2. 30 pm

Coram:    As before

Mr Simani

See CCSU v Minister for Civil Servants pf 408 Civil Service HLE pg 410

Pg 411 – I rely on this as highlighted

Legitimate expectation

Not able to get sufficient authority on the point.  I rely on diplock’s quotation at pg 408.  Here the Judge is being deprived.  When the Judge was appointed she expected to serve until 1974 – Expectation was to serve as per s 62.  S 62(3) a decision made consequent to subsection 9 (3) has the effect of depriving her of her legitimate expectation.

GROUND 3

1 and 3 convened by my learned senior when he covered the mandate given by the Gazette Notice.

At page 30 they found that a Judge enjoys security of tenure.  The interpretation of s 62 by the Tribunal is to take away the security of tenure.

The interpretation of s 62 by the Tribunal is to take away the security of tenure.  They abdicate and/or protect the tenure.

Ground 4

No opportunity given to her to explain before the appointment of the Tribunal.  Bulk of the bundle is history of the subject.  There is a record of every judgment and rulings delivered by the Judge.  Also is a copy of the hansard.  When rules of natural justice are breached you even see what harm can be done – the star witness says he has nothing to say.

The Tribunal has said that they are the opportunity she has.

This is not so – see BEES v CRAES – the harm has been done already now.

Can the Tribunal make rules that are ultra vires the constitution.  Can it – by ousting the Evidence Act – b7 equating s 77 with rule 5 of the procedure.

Do they have the right to subject the applicant to a procedure regulated by those rules.

Ground 7

Inquisitional and adjudicating.  I have touched on this.

Ground 8

Misdirection and breach of rules of natural justice.  The collective functioning of all the Judges together.

R v Armstrong

Judicial Review is directed at the decision and not on the person.

We are not attacking the decision of the President – see s 14 of the Constitution.  Our attack is on the process that led to this decision.  That process makes the Tribunal an illegal body.  The mandate it has been given is the wrong mandate.  Having the wrong mandate disentitles it to take up the matter.

Gazette Notice

It need not identify a Judge under inquiry.

It is not necessary for the Judge to know the matter for which he is being investigated before the Tribunal is appointed see page 33.

The only purpose of the Gazette Notice was the appointment of the Tribunal mention of the names of Judges is merely incidental.

It is the removal of a single Judge which is important.  This is a gross misinterpretation of s 62.  “No details were necessary” according to the Tribunal.

It is only the Constitution which gives directions to the Tribunal.  Nobody else can do it.  You can see the prejudice in the Tribunal process, the prejudice in the rules.  They say that the applicant was served with the complaint and therefore there is no breach of rules of natural justice.  But when you look at the allegations they are open ended.

Mr Simani

I apply for adjournment so as to submit on the issue of jurisdiction.  Mr Mwenesi had prepared this.  I would also like to produce Juma and Wako authorities to the court.

Order:

Hearing to continue on 9th March 2005 at 10. 00 am.

J G Nyamu

Judge

9. 3.2005

Coram:    Nyamu J

Njoroge court clerk

Mwenesi/Simani for the Applicant

Dr Lumumba for the Respondent

Mr Mwenesi

The Judicial review jurisdiction has been invoked because we are dealing with a Tribunal.  Tribunal is not properly established and did not have relevant jurisdiction to carry out its expressed mandate.  It is a body of persons which has been given power to affect the rights of a citizen – holder of the office of Judge of the High Court  -  s 62 of the Constitution.  Removal under s 62 is what we are concerned of.  That body as established must be properly established.

We have applied for certiorari prohibition and mandamus because the applicant believes that the Tribunal does not have power to deal with the matter contemplated under s 62 of the Constitution.

Powers of the High Court concerning Judicial review are infact donated by the Constitution of Kenya – see s 60 of the Constitution – has unlimited jurisdiction in civil and criminal matters and such other jurisdiction as may be donated by any other law.  That any other law includes the Law Reform Act, the common law Principals of Equity.  It includes customary law and it entails inherent powers of court to do justice to see that the ends of justice are met and to prevent abuse of the court process.

We submit is amplified when we look at the nature of the body we are dealing with and read s 123 (8) of the Constitution and section 3 of the Civil Procedure Act.

There is no provision for appeal against the Tribunals decision.  Its decisions are final.

S 123 (8) gives the court the answers for Judicial review, declaratory suits Originating Summons and equity Jurisdiction of the court – for injunctions and other remedies.  Functions under S 62 can be questioned under Sec 123 (8).

Section s 3 Civil Procedure Act has expressly provided that special jurisdiction shall not be affected if established under any other law.  It is instructions that the subsidiary legislation for Judicial review is in the Civil Procedure and Rules.  It is special jurisdiction as contemplated under s 3 of the Act.  That special jurisdiction draws from the common law.  That common law is included in the words (any other law) as per S 60 of the constitution.

I refer to applicant(s) of Authorities No.3.  R v NORTHUNBENLANI COMPENSATION APPEAL TRIBUNAL see decision of Singleton LJ.  Certiorari removes that order out of the way.  Lord ... 346 – 354 – history of the writ is given.  This court enjoys the same power under the 1938 Administration of Justice Act.

Court

How does this help us when we have a written Constitution.

The Kenya situation is that we have a written Constitution – there are aspects of this which are not written e.g the common law.

Whether power the High Court had, in England in 1980 this court has power.  We had to consider the spirit also – say of s 60 of the Constitution.  Because the Tribunal is subordinate to the High Court we could not use a Constitutional application. – we had to come by way of Judicial review.  The power of Judicial review is submission of inferior Tribunals.  That power of Judicial review can reach this body.

We do not want the court to substitute its decision for that of the Tribunal.

Is the procedure we started inconsistent with the Constitution.  We say  it cannot be void because the Constitution itself has allowed this power which was exercisable in England to be exercised in Kenya s 60 of constitution through the Law Reform Act Parliament has okayed it 58 and 9.

Pg 346 of Northermberland.  This control extends not only to seeing that the inferior tribunals keep within their jurisdiction but also to seeing that they observe the law.

Pg 347

It must be possible for the High Court to inturn to see that the law is followed.  To ensure that the constitution is also followed and prevent by prohibition breaches of law.

Pg 348 – errors of law apparent on record can be quashed.  There are many things wrong with the procedure used.  The applicant says inter... by certiorari:

No 7 on the applicant’s list PETER OLUOCH KADAMAS – OLOO (1982 – 88) 1 KAR 838.

At page 846 – Prohibition.  Prohibition lies not only for excess of or absence of jurisdiction but also for departure from rules of natural justice.  Bodies having a duty to act judicially.  The judicial review jurisdiction should be able to reach out to any person, President Minister etc.

No 11  R v COMMISSIONER OF LANDS Ex Parte Flowers Ltd High Court page 8- same powers as ... Court in England – see also Hon Mwalimu Case – also emphasizes the same point.

The fact that we have a new set circumstances should not prevent the court issuing judicial orders.

We see a lot of irrationality and unreasonableness.  Applicant is being asked to answer to question.  Also read page 9.  There was an expectation of hearing at the Chief Justice stage.  CCSU v MINISTER FOR CIVIL SERVICESJudicial Review is a tool for justice – it must be on a case to case basis.

The power of the President to refer the Judge to the tribunal is an absolute prerogative – it must be based on a question that is required – a question sufficient to satisfy s 62.   We adopt the view expressed in CCSU case –

-  the decision of tribunal

-  the errors

-  the decision to establish the Tribunal

-  the basis of the existence of the Tribunal

The President anybody is readable by Judicial review.

Lord Scarman Judgment

The question royal presentation is one of Constitutional law in the United Kingdom.  Judicial Review excluded prerogative orders.

See letter B – pg 409.  A decision which must be empowered by public law.

There is a recognition that those with constitutional rights can be reached by Judicial review eg Chief Justice the Tribunal – the validity of the whole process is being questioned.

The court has power under Judicial review connect the process if erroneous.  – see also AUTHORITY NO 12PAUL IMISON v ATTORNEY GENERAL Decision on s 123 (8).  See page 8  Indications of the scope of Judicial review.

-  As for the Chief Justice to perform his Constitutional duties

-  find that the Tribunal is not performing its mandate

-  read the record of the High Court – her record is one of a very hard working Judge.

It is a court of record.

This answers the whole question.  We must strengthen the position of a Judge and the Court of Appeal.  It must not be kicked around.  Everything is justifiable including prerogative stand on by securing the tenure of a Judge.  GEORGE v MUCHAI CHARITY NGILU & 2 OTHERS.  As there is no procedure under s 62 – The court would have inherent powers to control where the objective would be defeated.

No 77

COMMISSIONER OF LANDS v COASTAL AQUACULTURE LTD Where a tribunal excuses its powers namely prohibition under s 75 (2) – the Land acquisition procedures were not properly followed as set out in the Land Acquisition – see page 301 – Read as underlined.  The authority cited to show that Judicial review is available even for Constitutional matters.  At 302/303 the position of marginal notes in interpretation of the constitution as well.  At page 303 – reads on jurisdiction of tribunal.

The fact that the applicant participated in the Tribunals proceedings when the tribunal had made its decision not to finding that it had jurisdiction to proceed.

– Akiwumi J. says that cannot be a waiver.  -  see proceedings at RNN “1” copies of tribunal proceedings on 17th, 18th and 28th and 29th June 2004.

-  we did this under protest

-  composition challenged selection procedure

-  Gazette notice their validity

Prohibition issued for lack of jurisdiction.

On 17th June 2004 – at page 8 of those proceedings

-  We are not submitting to the jurisdiction of the Tribunal

-  Matter subsequently referred to the High Court as a report.

At 2 30 pm

Mr Mwenesi

Procedure under s 62 requires representation to be made to the President.  Chief Justice makes representation.  Representations must be known to the Judge.  The rules of fairness and rules of natural justice REES v CRANE emphasizes the need to follow fairness and rules of natural justice.

In Trinidad J Tobago then is a requirement that a commission frame complaint (court – looks at them) and then makes representations as to inability by infirmity of mind or body or misbehaviour.

Granted that the Constitution of Trinidad & Tobago are not the same as in Kenya – both of the Constitutions there are provision for representations to be made to the President.  It is s 137 in Tinidad & Tobago.  Ours is 62.

Case cited in authority  No 68.  Commission had acted in breach of the principle of natural justice and had contravened the respondents rights to the protection of the law.

1. 1  If as we submitted to the Tribunal is a loaded word.

In Trinidad it is the Commission which receives – help it is the Chief Justice who recommends – both have to make representations

-  the same procedural safeguards ought to be there – see page 191 letter 6 – 192 letter B

-  s 62 it does say that a Judge will be heard

- a judge is not an ordinary person of the Republic.  They have power to stop life of a human being to order death.  To remove a President in an election petition.

-  The Tribunal comes into being by virtue of the Constitution and nothing else.  The rules of procedure of the court

-  There is nothing that says a Tribunal to make rules

-  the subject matter is tenure of a Judge – right of hearing ought to have been given

-  a reasonable opportunity of presenting her case should be afforded – see letter F G X.

A  The Chief Justice stage the rules of natural justice ought to have applied.  It is not excluded -  urgency or administration necessity cannot exclude the right of hearing.

Commission is not a conduit pipe – pg 192 – pg 193 the Chief Justice is not a conduit pipe.  Representation not necessarily the Chief Justice can administratively deal with.

Prima facie basis cannot be established by the Commission this means going into facts of the matter.

It is the Chief Justice who makes the decision or informing or misbehaviour.  The representation must be the equivalent of impeachment proceedings.  The Chief Justice decision to make representation is of quasi judicial.

Allegations in this case recommend in November 2003.

Damage to reputation could be avoided.  This is why we did not settle to the Jurisdiction and instead raised objections.  Need for fairness is there.  A person complained of should know at an early stage what is alleged so that if he has an answer, he can give it.  I refer to pg 195 (E-F) tenure of office affected with immediate effect.  Representatives in our case are from the Tribunal itself and to be heard by it.

If the Chief Justice had filed an affidavit said that the applicant knows of the accusations or any other official – The applicant did not know.

A letter would have been sufficient.  The proceedings were quashed in Rees v Cranch.  They also address other issues of bias.  The DPP is the are forming the allegations three or four months later.  They were two acting Judges now confirmed who were in the Tribunal.  Both contract J and Mwera J are persons the Judge looked up to void – fo – lei

Presidential Immunity

The Costitution of Kenya is written.

S 3 states that this Constitution of Kenya – has force of law through Kenya – It is indeed a special statute.  Tribunal established by the President

-  s 14 provide that the criminal or civil proceedings can be instituted against the President while he is exercising the functions of his office

-  Judicial review proceedings so are special – they are neither civil nor criminal

-  The act of appointment does not provide the High Court to issue Judicial orders.

R v HAILSTRON & ANOTHERpg 775 – see hold.

If words are not wide enough to oust the jurisdiction the court would still have power.

It is impossible to oust jurisdiction of the court in Judicial review.  We ask that the application be allowed with costs.

Dr Lumumba

I intend on this basis of the skeleton arguments grounds dated 8th February 2005 and the second one dated 22nd February 2005.

I want to pose 4 questions

Q 1  Whether this court exercising its Judicial review jurisdiction can entertain the applicant

Q 2   Whether a Judicial review court can look at the merits of a decision

Q 3   Whether in exercising Judicial review jurisdiction the court can effectiveness interpret the Constitution of Kenya

Q 4   Whether the orders of certiorari, prohibition and mandamus are available to the applicant before you.

Q 1

Whether court issue the orders sought

Answer:  This court cannot issue the orders sought because what is before this court is Constitutional interpretation – see page 3 (8) or (SA)

At page it is being urged that the Constitution has been breached see s 62(5).  To decipher the spirit of a Constitution you look at the records of the Constitution.  This is settled law.  How do you deal with s 62 of the Constitution.

-  If an issue has arisen regarding the word removal

-  the words removal must not be used

-  the only thing you do is to put in place a process that is in tune with the Constitution

-  At the stage when he is acting pursuant s 62(5) he is merely a conduit as the law is now the Chief Justice is a conduit of the well known Ringera report.  He need not at that stage accord a hearing.  The opponent’s submissions belong to the Law Reform.

If s 62(5) promises and require more – it is not excuse of Judicial review jurisdiction that ought to be asked for.  It ought to be asked for in a court interpreting the Constitution.  -  see Authority No 6 KAMLESH PATNI v R PG No 18 – having highlighted Judicial review is meant to deal.  The applicants have not come under s 84(4) – buy Originating Summons.  If they have any cause of action.

S 62 – calls for Constitutional interpretation

-  It is not the Judicial review jurisdiction that accords them that remedy

-  the remedy they seek is also not under s 84(6)

-  it does not fall under s 67 of the Constitution

-  X they can only invoke the interest Jurisdiction of the court – and that can be done Originating Motions per practice – under s 60 of the Constitution you seek the empanelling of a Constitutional court.

Tenure of office of Judges Marginal Notes

See cardinal Rules on Interpretation of statutes.  They cannot be relied.  They are not part of a statute.

62(5)  It is not true that the rights of the applicants have been improved.  The section merely empowers the Chief Justice to take the action of making representatives without more.  It does not require him to write a letter.  If it was the intention of the constitution to prosecute the four nothing would have been easier.  This is not expressly or impliedly provided for.

I would be distinguish this from REE v CANE.

Unlike Trinadad J Tobago – there is no Commission which receives representation from the Chief Justice and tests the evidence before it is presented to the President.  The evidence in our circumstances is to be tested at the Tribunal.

Right of hearing:   No need of hearing at this stage taking into account the circumstances of the case.  The unique circumstances are when the applicant reaches the Tribunal she says that I do not want to be heard.  It is the applicant who refuses to be heard.  Judicial review does not deal with a situation where a person declines to take the right and he argues but he must take it as he deems fit.  The use of the words on the Gazette Notices.

We are told that unless we use the word removal then the notice is bad.

I submit that you do not need to use the words in the statement as big as the intention is made clear.  See Authority No 13 ELDON ARAGES v KINGSTON  S A page 11 – see what is held speech of Judge .  It is not mandatory that the exact words must be cited in order to satisfy the requirements of Law.

S 62 must be read within its context – they cannot be any other ... – it is about misbehaviour and conduct as a Judge and for no other purpose.  Authority No 17 Oxford AL Dictionary No. 18 Blacks. Miscondut – you talk about behaviour – improper behaviour.  Sermantics should not be allowed to take away what is under scrutiny.

Rules of procedure pursuant to S 62(5).  The gazette notices issued by the President upon receiving representation is for public communication to the subject of the inquiry and the public at large – that a process has been set in motion.  When he hears that he does so.  He is acting pursuant to the provisions of s 62(5).

How does a Tribunal then perform its functions

The Tribunal sets out rules of procedure how it intends to regulate.  It is in this context that the rules must be seen.  It is the manner it intends to conduct its affairs.

Prayer No 1 in the Notice of Motion seeks to quash the Gazette Notice because they are made without jurisdiction.

Skeleton Arguments page No 6

Tribunal has powers to make its own Rules – see AUTHORITY NO 7 – page 97 HALBURYS LAWS Vol 1(1)(4).  Tribunal regulates its own method of proceeding.  RMM 15 – Gazette.  The President clearly says that they will regulate their own procedure.  They are therefore acting within the mandate given to them.

Rules of procedure have been made pursuant to the powers given by the appointing authority.  They are in keeping with accepted practice – to regulate its own procedure.  Shall not be bound by the Evidence Act – we will have a greater leeway but will be bound by the rules of natural justice and rules of relevance will also apply.

Issues of prayer I and II the decision of the Tribunal to exercise its jurisdiction as conferred by the appointing authority is contrary to the Constitution – that it is contrary to the legitimate expectations of the applicant Judge.  I argue that they are not therefore certiorari cannot be available

-  Did the President appoint persons who qualify

-  each of the members qualifies in terms of S 62(5)

-  Did the President reserve a representation? Yes, he did reserve a representation and he says so in Gazette No 8829 dated 10th December, 2003.  Was the legitimate expectation of applicant harmed any way

-  Her legitimate expectation is that she shall not be removed from the office of a Judge without being given an opportunity to answer to the allegations made against her.

-  Has she been accorded the right of hearing?  Yes she has

Partheard.  Hearing to continue at 10 30 am on 15th March 2005.

J G Nyamu

Judge

15-03-2005

Coram:    Nyamu J

Njoroge court clerk

Mr Mwenesi/Mr. Simani for the applicant

Dr Lumumba for the respondents

Dr Lumumba

S62 and the principle of legitimate expectation.  It does not exist in the air.  It must be anchored on the law of the land.

In our case the principle must be founded on s 62 or in the principle of estoppel or that the circumstances are such that as to justify s 62(5)

1.  The Chief Justice makes representation

2.  The representatives are made to the President

3.  Upon receiving the representation he the President appoints a tribunal

The provision does not require him to undertake any investigations at all.

A person looking at this provision who is a Judge looks at:-

(a)  If an issue concerning her removal arises a representation will be made to the President

(b)  And when the representation is made the President shall appoint a Tribunal

(c)  That the Tribunal will grant him or her a hearing.  -  ie at the stage of the Tribunal.

Yes, there will be a hearing by the Tribunal.  This is my respectful submission is the legitimate expectation.

It is the Tribunal which makes known the reasons for the inquiry.  It is at the Tribunal that he will be able to respond the allegations leveled against him.  He finally knows that the entire process of examining those issues will be at the Tribunal as the adjudicating body.

The legitimate expectation he or she has must be within the confers of the Constitution.

That which is legitimate must not be unreasonable within the circumstances.  The words of the Constitution are clear – see El Mann where there is clarity within the Constitution one not look for the spirit of the Constitution outside these words.

Representation could even be oral or on phone.  This is the law of this country.  Ringera Report is in the public domain.  Ringera report was an administrative advisory report for the purpose of informing the Chief Justice.  It is not a Constitutional requirement.  It is assumed that the representation was made on the basis of it – but it could have been on other sources.

You should look at this from the stand point of the law and not with the wisdom of the windsight.

We cannot say that because other jurisdictions whose law is different, we ought to decide legitimate expectations on the basis of that other law.  It is in this context that the authorities cited before you must be distinguished.

- (1)  Legitimate expectation is founded on the law – either explicit provisions of the law or

(2)  In the absence of an explicit provision of the law – it is a reasonable expectation in the circumstances or past practice involving the issue at hand in such that as to lead the person concerned to believe that that practice will continue.

By reading the section there is nothing that says that they should be a hearing before the establishment of the Tribunal.  It is a question which ought to be investigated.  As  Judge I would I expect a representative by the Chief Justice and that a Tribunal would be appointed and that I will be heard by the Tribunal.  -  This is the expectation on the explicit words of the section.

In the circumstances what would I expect.

I would expect a hearing by a body to test the allegation.  In our case that body is not the Chief Justice – that body is the Tribunal.

In our case there has hence been any practice on the point.  We are on virgin law – we are doing it for first time.

REE v CRAES

Trinidad & Tobago.  The Chief Justice shall make known the grounds to a Judicial Commission then the Judicial Commission upon being satisfied that the evidence at hand is good enough make representation to the President who is then Constituted a Judicial Committee to inquire into the allegation s 137.

Under their law the Chief Justice has the power to remove a Judge from the Duty list.

It is equally noteworth that the Chief Justice is a conduct for the commission – he receives on behalf of the Commission.  He purported to take certain decisions and the Commission purported to endorse those decisions – this was found to be wrong – the task of the Commission cannot be taken by the Chief Justice.

Distinctions

In that jurisdiction there is a commission – it is now the Chief Justice who acts.  This is not the case in Kenya.

Rees had presumably appeared before the Commission in other matters and he legitimately expected to be treated the same way.

The expectation in Rees case it is on the basis of Rees expectation based on previous treatment by the Commission.

In the instant case it is totally different.  You have a Commission tht weighs evidence before it moves forward.  You have a Commission that has previously entertained the Judge it is therefore reasonable that they should act  – there is no such Commission in our Jurisdiction.

The fairness of the Constitution affected a hearing at only one stage –i.e. at the Tribunal – this is what an aggrieved party should legitimately expect.

Pg 194    REE case there is a clear requirement that before – in the course of preliminary investigations the Judges should be heard – x  In our case ther is no requirement for a preliminary investigation.  We are merely told is a question arises.

We must clearly distinguish the Rees from this case.

·   The structure of adjudication is totally different

·   Rees here had been preciously practices.

·   Our Constitution speaks explicitly for our strength having to find its spirit.

·   In the Rees there was a Judicial Review application and a Constitutional application as well.

CCSU v MINISTER FOR CIVIL SERVICE

The issue of legitimate expectation in this case is once again very prominent

·   There was an arrangement that they were entitled to belonging to a trade union.

·   A prerogative order was made taking this right away.

The workers were given a staff association instead of union.

The question is was there legitimate expectation.  Yes, you had given them to speak to it you cannot take away without speaking to it.  That status would change if they did not come to court.  In that case the prerogative order finalized everything.  – the opportunity to address the issue at hand

Our case is different

·   A representation has been made

·   A tribunal is appointed.  At this stage the applicant argues saying not until I am heard by the Chief Justice first.

The CCSU does not assure the court save on the narrow issue of legitimate expectation pg 401 letters B – the ambit of legitimate expectation.

See 408 letter E to G

The essence of this is now regulated by Rules of The Supreme – provide the means by which Judicial Control of administrative action is exercised.

After Orelly v Markman it is the exclusive venue of attaching public law decision in the UK. – the basket is wider.

In our case it is different – our law is the pre 1976 effectual but based on 1938.

The two jurisdiction have grown separately.  CCSU is completely distinguishable and cannot assist the court.

PAUL IMMERSON

Judicial Review is available to the person who refuses to act in accordance  S 26(1)

In the case under S 62 something is required of the Chief Justice – he has done it he has set in motion the process.

GEORGE MUCHAI

Page 11 – R v ELMAN if words of a statute are clear we cannot do more.  We must confer ourselves.  COMMISSIONER OF LANDS v LAKE NAIVASHA  JR  - it ought not to even under S84 orders shall issue

GITHUNGURI (2) is a perfect example of legitimate expectation when the Attorney General stand in Parliament his successors in office must take institutional responsibility for that office.

WHETIFER Judicial Review IS AVAILABLE in the circumstances

Judicial Review is not available in an application such as the one before the court.  The ambit of Judicial Review is to deal with powers of relief character quasi are administrative and Judicial character.  Judicial Review is not the remedy available when what you are complaining about in a breach of powers emanating from the Constitution – unfortunately this is what is exactly before you.

You being asked or issue in direction matter within the domain of the constitution.  The applicants are saying that s 62 makes certain promises and requires certain actions and the Tribunal is saying a different thing – the Constitution says a different thing.  The question before you is one of interpretation of the Constitution.

When that arises you ask for a Constitutional court intervention – and it in turn makes a declaration one way or the other.  Judicial Review is not meant to do that – it cannot do that.

In United Kingdom they would be perfectly entitled to come the way they came by Judicial Review but here we do not have this under our law.  Out courts cannot issue declarations AUTHORITY NO 6 page 19

-  Judicial Review jurisdiction must be distinguished

-  Anticipated the rules

The correct avenue that should be Constitutional application.  Then right under s 77(10) and (11) have been infringed.  The applicants are inviting the court to give them Judicial Review remedies.

The court is disabled from giving relief because the law does not allow.

After the 2002 Rules made under s 84(6) – Authority No 22.  -  Application shall be by an Originating Summons and this is a notice of motion.  – see Authority No 23 – Ringera J – R v Electral Commission of Kenya – he dealt with this issue.  At page 13 – after the rules the manner of invoking the jurisdiction is well settled.  The court has not been properly being moved.

Under s 62 the courts have consistently stated that the court should be moved by way of Originating Motion – and the court could go on to interpret it.  -  This has not be done either.  The court cannot move – because your hands are firmly tied by the law.

Tests

Prayer No1

Certiorari to quash the decision of the Tribunal

·   That it is contrary to the Constitution

·   Rules of natural justice

·   Legitimate expectation of the Judge under s 62

Tribunal decree.

·   Pursuant to s 62 (5) we have jurisdiction.  Applicants are saying you do not have jurisdiction

X  different interpretation of the Constitution

X  certiorari is not available to you, you go to a constitutional court – certiorari quashes a decision

X  here you are being asked to interpret an act pursuant to the Constitution.

Rules of Natural Justice

X  Rules of natural justice as regards the Tribunal are not yet in play yet because the applicant is saying that you interpret the Constitution first.

·   They have a legitimate expectation – the legitimate expectation they have is the Tribunal

·   They are running away from the Tribunal and not taking advantage of what the Tribunal promises

-  see S A – page 2

S A supp page 2 Authority No 14 KNEC – it tells when certiorari issues – does not we to correct the course, the procedure on merit

-  Prayer No 1 must collapse – it seeks that which is not available

-  Under s 62 – rules of natural justice are presumed by s 62(5) – by enjaining the President in mandatory term to appoint a Tribunal effectual on Judges fears a Tribunal of your own people and only upon them finally is action taken.

In this claim is natural justice satisfied – this is a total package which is a process you cannot forget the forest because of the tree.

Natural justice has been complied with and the applicant should take a challenge.

1(b) Prayer

The court is being asked to take away rules of procedure and to take away the powers conferred on the appointing authority ie the President by which he empowered the Tribunal to Regulate on procedure.  The President in the Gazette Notice clearly states that the Tribunal shall have the power to regulate its over procedure.

Even if the President had not said so, the Tribunal would have the power to regulate its own procedure.  There is a will settled principle of law I submit:

-  The rules are not available to Judicial Review reason

(1)  they are within jurisdiction having been made pursuant to powers confirmed on the President by virtue Gazette Notice 8829 of 10. 12. 03

(2)  it is trite and acceptable law is within its right to regulate its own procedure

Find that they do not in any way offend natural justice instead they enhance natural justice.  SA – I have spoken to the Law – see Halburys remedy is not available to the applicant as sought.

Prayer 1 (c) 2nd, 3rd, 4th, 5th and 6th be prohibited from sitting (1) to VII

What is being prohibited.  Is this a properly constituted Tribunal – test each of the members criteria set out in s 62 5(a) it (iii) – All the individuals satisfy this criteria.

-  that allegation drawn by assisting counsel 30. 1.2002

-  the mere fact of drawing the allegation – those allegations are bad.  It cannot be true.  An assisting counsel assists the Tribunal perform its Constitutional duties.  What is the prohibition about.  The counsel is our agent – what is the prohibition.

-  excess of jurisdiction

-  outside of jurisdiction

AUTHORITY NO 14

JARED KANGWANA

-  prohibitory looks to the future page 75

-  you cannot stop the Tribunal from performing what the law requires

-  the Tribunal is within the jurisdiction

Prayer (d) - Prohibition

Effectively what is under attack is the Gazette Notice – not issued by the applicant but Gazette Notice issued by the President – they are being told to ignore the jurisdiction conformed

-  they cannot ignore – they are servants of the constitution

-  this court cannot defeat the Constitution.  It must uphold the Constitution

-  the realm of prohibition is well known

Prayer (e)

Mandamus directed to the (5) respondent to observe the rules of Natural Justice – the Chief Justice.  It is not available.  It is available when there is lethargic servant refuses to move – it is the focus of mandamus.  The Chief Justice is not -  He immediately made a representation hence the Institution of Tribunal.  What else is he expected to do.  An order would be an absurdity.  A court of law never acts in vain – see Authority No 14 pages 12 to 13 KNEC.

The judges capture the essence of a mandamus

-  it is a command issued to an inferior tribunal to perform a public duty

-  it is the Chief Justice who is self igniting – he may act sen-moto upon information if he chooses

-  what else did the Chief Justice not do under the Constitution – Answer – Nothing.

In other jurisdictions the Chief Justices have acted differently on the basis of our laws which is not on all forms with our law – I urge you to avoid that Judicial adventure.

You are also being asked to attach the decision of the President in publishing the Gazette – this we are told is what brings the matter with Judicial Review because it is the Gazettee Notice that is under attack.  Decline that invitation – The President is immuned from Judicial scrutiny by dual of section 14 of the Constitution.  One arm of the government has to be a check on the other.  He is looking at every person of the law.  He must be spared that scrutiny.

This is not a suitable case for mandamus to issue against the Chief Justice – he is functus officio.  Judicial review in some general motive the conforms of Civil law.  When an executive acts qua executive even in the CCSU v Minister of Civil – not amenable to Judicial review – The fact that the orders are issued in the name of the Republic – The President is a creature of the constitution Organ of Government must act independently and as long as they act in accordance with Constitution they will be spared from scrutiny.  Remedy not available to the applicants – see KNEC

Completely as framed

It is bad in form.  It is fatally defective.  It does not comply with O 53 two documents fail the test:

(i)  the statement signed on 17th June 2004 by Simani certain many contentious issues – has 24 paragraphs

(ii)  annexed to it is a five paragraph document – see Paul Imerson page 7 to 8.  Authority No 3 the forum for stating the facts in the verifying affidavit because the facts are evident.  It is even questionable that an advocate can sign.

I am aware that there is a supporting affidavit sworn 17th June 2004 by the Judge.

The primary documents cannot be cared that way pages 7 to 8 – PAUL IMMErsion – leave could not cure what is specifically the law.  -  see also MIRENDA examine the statement and verifying affidavit.

CLOSE

I have answered all the 4 questions.  Application outside Judicial review.  Predicated my oral argument upon my skeleton argument and authorities duly paginated.  You are invited to look at support arguments.

(1)  what is before you is a case for Constitution which has been before you under the wrong provision of the law

(2)  Judicial review jurisdiction has been well in improper circumstances and therefore ought to be denied

(3)  The form of the application offends the mandatory requirement of law.

The application should fail with costs to the Republic of Kenya.  Adjourned 2. 30 pm.

15-03-2005 at 2 30 pm

Coram:    As before

Mr Mwenesi

(1)   Whether Proceedings fatally defective form

Judge gave leave on the basis of the challenged affidavit and the statement.  We are not in the same position as in Mirenga – where there was no affidavit o the facts.

It is custom in our jurisdiction to have statement of facts and grounds and to repeat it an affidavit – see Order 53 Rule 1(2) – some of grounds would be of fact and of law – some of them on law

What in regard is an affidavit verifying the facts relied.  There is another affidavit explaining her position.  See JUDICIAL REVIEW AND PROCEDURE RJF GORDON pg 75  7 – 11 reads.

Since June last year we have been at this.  We have relied on the same form.  The rules do not prescribe the term – there is no prescribed content for the affidavit.

LEGITIMATE EXPECTATION OF A JUDGE

Under s 62 the only expectation is to form an opinion and for the establishment of Tribunal.  S 62 must be looked at in totality.  Expectation is that she is a Judge until retirement.  Expectation is that the Chief Justice would fair

-  natural expectation is that look here this allegation has been green about you – what do you say.  When there is no specific provisions you tap from the common law.

The  scheme of things in s 62 the people qualified – 1st category – has been a Judge in a court in a Commonwealth country.  He would come with his express and practice in his country.  We should look at the Commonwealth to enrich ourselves. Rees –vs- Crane is cited as a leading decision in the common weath.  We ask the Court to find submission that REES v CRANE has no relevance is out of date.

An opportunity should be given to the Judge to make representations.  The Chief Justice of Kenya cannot be a conduit.  He must consider and give an opportunity to reply.

Reasonable expectations

S 62(3) – the Judge reading this expects that somebody must have a ascertaining the misconduct infirmity of mind or body because of the requirement that a judge must be removed for certain reasons you ought to know those reasons before hand.

It is already adverse by the time the stage s 62(4) – natural justice is about adverse decisions.

This cannot be the true meaning of the Constitution.  It is a mischieve to say that the Chief Justice is not in the same position as the Judicial Committee in Trinidad – this is why we are saying that we have been subjected to the wrong process.

AQUACULTURE CASE

It is better to know before you go into the question of the process what the reasons are – We submit that this decision applies.  At para 35 of the affidavit says she appeared before the Ringera Committee.

-  she heard of her suspension in the local media

-  I was not offered an opportunity even by the Ringera Committee.  Ringera is in a position of the Judicial Committee.  They did not address the complaint which is now before the Tribunal.  The process does not accord with the CCSU v Diplok.

There was Wednsbury  unreasonable – this is the classic test.  Give effect to the law with and of other statutes pari material – he is a Chief Justice within the Commonwealth and say that is what we would reasonably expect.

Constitution has to be interpreted with history in view, with aid of Commonwealth law as the circumstances demand.

Is what has happened reasonable.

In Rees v Crane the Procedure Code grappled with situations in other countries.  Rees v Crane is the most important case to look at for interpreting s 62.

Judicial Reivew is not available

It is true that Judicial Review jurisdiction have not been expanded to give the court to grant declaratory relief at pg 18 – supervise Ministers etc excuse – the number of bodies are open the body we challenge is amenable to Judicial review.

We wish you to excuse Judicial review jurisdiction.

We are not asking for time interpretation of the Constitution

-  look at composition

-  its conduct

-  what it is likely to do

-  lacks jurisdiction

-  issue a mandamus

Look at this law and issue the following order.  This is the premises of Nothumberland Case.  You invoke the relevant jurisdiction.  Aquaculture.

CCSU case 407.  They were relying on pre 1977 cases.

-  if matter is justifiable Judicial Review can extend

-  CCSU is still relevant it can inquire into matters Constitutional

-  PATTNI – it is administrative powers where Judicial Review also applies.

I do not agree that the orders sought cannot be granted.  We are dealing with terms of office.

Circular Rules of legal Interpretation – 1908 pg 263

That marginal notes cannot be relied on in interpreting a statute.  The law relating to that tenure is not anywhere else except s 62 of the Constitution and Judicature Act.  Looking at the law are the grounds relied contrariwise valid – we say yes we are on all forms with KNEC.  It can issue.

Prohibition

Look at the jurisdiction the basis for that Jurisdiction save arguments as in CAASTAL AQUACULTURE finding that the person did not know the reasons and the public – is it inability, mandamus etc one should know before you go to s 62(4).

Mandamus

On the same ground as in KNEC there is still jurisdiction to stop this proceedings.  She is saying let me go before a properly constituted tribunal or one that satisfies the test of law for its existence.

-  see Gazette Notice

-  and the role of the Chief Justice in the matter – he does not just form an opinion she wants to test.

-  the President has said look at conduct, including but not wanted to

-  at the date of publication she however knows about it that is why she went to the Tribunal and asks them to look at jurisdiction and power and we say they went wrong.

In Acquaintance, prohibition did issue – mandamus could also issue to secure the rules of natural justice Judicial Review is available.

We invite the court to find that Gazette notice is inconsistent with the provisions of the Constitution.  The opportunity authority of the Tribunal is the Constitution – it just gives the President executive powers to implement.

The President went beyond the powers confined on him by the Constitution.

Rules

The practice in the Commonwealth I agree set tenure parameters – It is not for the President to tell them what powers they had – ask them to apply their legal and Judicial mind including the ingredient of commonsense.  The Chief Justice in an administrative capacity the court has power to direct buy mandamus.  The court should speak from this order – there is never any end to reformat intervention.

I ask for stay order be confined by prohibition.  The Tribunal ought to be quashed – the learned counsel did consider that they are an adjudicatory tribunal.

Is our application properly grounded s 77 (10 & (11).  Nowhere in our prayers have we asked for the enforcement of fundamental rights – we have asked for certiorari to quash the rules – ie (1) these rules say they oust the Evidence – they cannot do so.  (2)  they take themselves out of adjudicating authority and to have their proceedings in public – they will be in public unless they are asked to go private – Judicial review should reach out for this reason – We have the right to be heard in public.  By this process give life to s 62 and then to help all us who come before the court – irrationality – we have seen will not recur – from them come my help – application be allowed – and be allowed with costs.

Judgment will be on 22/4/05 at 10 00 am.

J G Nyamu

JUDGE

22-04-2005

Coram:    Nyamu J

Njoroge court clerk

Simani for the applicant

Dr Lumumba for the respondents

Judgment read in the presence of both counsels.

J G Nyamu

Judge

Simani

We intend to lodge an appeal.  We will seek a stay pending appeal orally.

Dr Lumumba

Application incurably defection.  It would claim back the findings of this court.  They have already enjoyed an earlier unconstitutional stay.

Mr Simani

The issue of merit or demerits of the stay can be contested before this court or the Court of Appeal.

The court has recognized the importance of the matter hence the need for it to be ventilated fully in the Court of Appeal.

RULING/ORDER

In this matter I have made several specific findings touching on the competency of the application and that position has not changed.  I find myself unable to exercise my discretion in ordering a stay.  For this reason the oral application for stay is refused.  The applicant may if so advised by court lodge a formal application for stay for hearing on merits.

It is so ordered.

Dated and delivered at Nairobi this 22nd day of April,2005.

J G Nyamu

Judge

22/4/2005