In the case of Hon. Lemanken Aramat v. Harun Meitamei Lempaka & 2 Ors. [2014] eKLR, the Supreme Court of Kenya (Coram: Rawal, DCJ & V-P, Tunoi, Ibrahim, Ojwang, Wanjala and Njoki, SCJJ.) (Petition No.5 of 2014) in answering the question whether it has the jurisdiction to entertain an appeal from the Court of Appeal on an electoral Petition filed out of time held at paras.148 and 149 as follows:
“The factor of time and timelines, at the very beginning in the High Court, when the 1strespondent filed his petition on 10th April, 2013 – 36 days rather than 28 after final declaration of results on 4th March 2013 – goes to jurisdiction.
By the principles considered in this Judgment, and by the settled authorities of the Court, the High Court lacked jurisdiction to entertain the 1st respondent’s petition. Similarly, the Court of Appeal lacked jurisdiction – in several respects, as already noted. Consequently, the determinations made in both superior Courts were null. We would dispose of this cause on the basis of the law of jurisdiction.”
The Supreme Court, went further to hold that, though the High Court lacked the jurisdiction to determine the petition ab initio which consequently. the Court of Appeal lacks the jurisdiction to entertain any appeal of the incompetent Petition from the High Court the Supreme Court of Kenya by virtue of the Kenyan Constitution is invested with the jurisdiction to determine the issues raised in the Petition for general oversight of the interpretation and application of the Constitution, and of the matters of law of general public importance. The Supreme Court puts it this way:
“Just as the High Court lacked jurisdiction to entertain the original petition, on the grounds of breached timelines, so had the Court of Appeal no jurisdiction to entertain the matter.
However, the law of jurisdiction does not apply in the same way for the three superior Courts: the competence of both the High Court and the Court of Appeal being more definitively regulated, whereas that of the Supreme Court flows from broader empowerment, for general oversight of the interpretation and application of the Constitution, and of the matters of law of general public importance.”
“The 3rd respondent’s Gazette Notice No. 3155 of 15th March, 2014 declaring the appellant herein as the duly-elected Member of Parliament for Narok East, is reinstated and sustained.”
With utmost respect to the apex Court, it is submitted that, that Supreme Court erred when it proceeded to determined the Petition after it has ruled that, the Petition was a nullity ab initio and that the Court of Appeal and the High court lacked jurisdiction to hear it.
It is arbitrary to hold that “the determinations made in both superior Courts were null. We would dispose of this cause on the basis of the law of jurisdiction.” and hold in another breath that the Supreme Court can invoke its interpretative jurisdiction to assume jurisdiction on a Petition it has already held it lacks jurisdiction to entertain.It amounts to an evitable judicial contradiction. The Supreme Court after conducting a judicial autopsy on the Petition diagnosed that, it was dead on arrival at the High Court as well as the Court of Appeal for lack of jurisdiction. The apex Court now proceeded to give the Petition the live it never had and still does not have and ended up just creating an evitable case law controversy on whether it is dead or alive.
It is worthy of note however, that one of the seven Justices of the Supreme Court who heard the appeal (Mohammed Ibrahim, SCJ) had a dissenting view on his learned brothers majority judgment.In his dissenting judgment his Lordship made reference to the illumination of Akintunde Esan on Nigerian jurisprudence, in the paper, The Principles of Law on the Jurisdiction of Courts of Law in Nigeria .The dissenting judgment is reproduced below.
“THE DISSENTING OPINION OF MOHAMMED IBRAHIM, SCJ
[157] I have extensively read the majority decision of the Court and I am unable to agree with it in totality. The factual rendition of this matter is well captured in the majority decision of the Court. Four issues for determination have been delimited and as the first issue deals with a question bordering on jurisdiction, I proceed to consider it first.
[158] In answering the question whether the proceedings before the High Court were void ab initio, two pertinent aspect of the issue crystallizes for determination as raised by the 1st respondent: when can a question of jurisdiction be raised; and whether parties are bound by their pleadings when raising a question of jurisdiction.
[159] Whether the petition at the High Court was filed out of time is not in contention. It is common ground that indeed it was filed 36 days after declaration of results by the IEBC. The Constitutional principle for timely disposal of electoral disputes has been severally reiterated by this Court in its various recent decisions. This principle springs from Article 87(1) of the Constitution which provides:
“Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes”.
[160] The Constitution sets the tone of this principle when it provides the time within which to lodge an election dispute in both a presidential and a non-presidential election.
Article 140 provides:
1. A person may file a petition in the Supreme Court to challenge the election of the President-elected within seven days after the date of the declaration of the results of the presidential election.
Article 87(2 provide:
Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
[161] In drafting Article 87 of the Constitution, the drafters were informed by the dark election petition history in our country where petitions could drag on into the next electoral cycle. This was captured by this Court in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji, Petition No. 2B of 2014 (Munya case) at paragraph 62 thus:
“[62] Article 87 (1) grants Parliament the latitude to enact legislation to provide for “timely resolution of electoral disputes.” This provision must be viewed against the country’s electoral history. Fresh in the memories of the electorate are those times of the past, when election petitions took as long as five years to resolve, making a complete mockery of the people’s franchise, not to mention the entire democratic experiment. The Constitutional sensitivity about “timelines and timeliness”, was intended to redress this aberration in the democratic process. The country’s electoral cycle is five years. It is now a constitutional imperative that the electorate should know with finality, and within reasonable time, who their representatives are. The people’s will, in name of which elections are decreed and conducted, should not be held captive to endless litigation.”
[162] This principle of timely disposal of election disputes informed parliament in the enactment of Section 76(1)(a) of the Elections Act. However, this section was declared unconstitutional by this Court in the Joho case, for having anchored the 28 days within which one is to file a petition challenging election results in an election other than a presidential election on the publication of the results and not the declaration of results as provided for in the Constitution.
[163] The retrospective application of the declaration of section 76(1)(a) of the Elections Act was endorsed by both the Court of Appeal and this Honourable Court. Recently, in the case of Anami Silverse Lisamula v. The Independent Electoral and boundaries Commission & 2 Others, Petition No. 9 of 2014 (Lisamula case), this Court quashed the proceedings of the superior courts after a finding that the petition was filed 35 days after declaration of results. The Court held as follows [at paragraph 124]:
“On the basis of the foregoing considerations, we find that the petition in the High Court, which was filed 35 days after the date of final declaration of results by the Returning Officer, fell outside the 28 days prescribed by the Constitution; and thus, all the proceedings ensuing from such declaration of results, at the High Court and the Court of Appeal, were a nullity. Neither of the two Courts had the jurisdiction to hear and determine questions founded upon such election results.”
[164] In the Lisamula case, this Court traced how the jurisprudence was developing from the Court of Appeal to this Court on the retrospective application of the declaration in the Joho case. The Court of Appeal had applied it in Suleiman Said Shahbal v. The Independent Electoral and Boundaries Commission and 3 Others, Civil Appeal No. 42 of 2013; and in Paul Posh Aborwa v. Independent Electoral and Boundaries Commission and two others, Civil Appeal No. 52 of 2013. It was also noted that this jurisprudence had been buttressed by the Supreme Court in the Mary Wambui case.
[165] Consequently, conscious of its fidelity to its mandate as provided in section 3 of the Supreme Court Act, 2011, the Court ruled that departing from such an emerging jurisprudence without any course for such a fundamental shift will be throwing Kenya’s jurisprudence into disarray. It held as follows [at paragraphs 119-120]:
“Hence, in the Wambui Case this Court concurred with the Court of Appeal on how the declaration of the unconstitutionality of section 76(1) (a) of the Elections Act should be applied. In taking a common position, the two superior Courts had set a steady jurisprudential foundation on this question.
This Court is not about to depart from this pragmatic perception, which endeavours to sustain a right recognised under the operative state of the law. We are of the opinion that such a pragmatic perception, once reflected in judicial interpretation, is to be regarded as a building-block ofour jurisprudence under the new constitutional dispensation.
[166] Counsel for the 1st respondent has urged that the Court distinguish the Mary Wambui case from the current case. His main argument is that there was no pleading filed on this issue and neither was a prayer sought for striking out the petition contrary to the position in the Mary Wambui case. Counsel’s submissions border on this Court being called upon to depart from its earlier decision. The question then is whether a case has been sufficiently made for the Court to depart from its earlier decision.
[167] In Jasbir Singh Rai and three others vs Tarlochan Singh Rai and four others, Petition No. 4 of 2012 (Jasbir case), this Court considered whether and when it can depart from its earlier decision. Adopting the dictum in The Bengal Immunity company Limited v. The State of Bihar and Others[1954] INSC 120, it held:
“[43] In principle therefore, it follows that this Court, an apex Court, can indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight.
[44] Such a latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution. Article 163(7) of the Constitution of Kenya 2010 thus stipulates:
“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”
[168] The Court then laid down principles to be considered in departing from its decision thus:
“61] As times, values, perceptions, and yardsticks of legitimacy and right, keep evolving, however, the Supreme Court retains a competence and discretion, when properly moved, and on weighty grounds, to reconsider its precedents, and to vary them as may be appropriate.
[62] Subject to that broad principle, certain directions may, on this occasion, be laid down:
(i) where there are conflicting past decisions of the Court, it may opt to sustain and to apply one of them;
(ii) the Court may disregard a previous decision if it is shown that such decision was given per incuriam;
(iii) a previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion;
(iv) the Court will not depart from its earlier decision on grounds of mere doubts as to its correctness.”
[169] I dissented in this case but added further principles for departing from a previous decision thus:
“[136] Therefore, the Court should, in addition, take into account the following principles, when considering whether to depart from its precedents:
i. A decision that is manifestly wrong on the face of it will occasion a departure by the Court. What is manifestly wrong will depend on a conscientious determination by the Court, and will vary from case to case.
ii. Whether a decision is erroneous, and severely affects the lives of people, and impacts negatively on the general welfare of the public.
iii. Upon consideration of such elements, the Court will be ready and willing to depart from an erroneous decision, where the decision is a recent one and the decision has not as yet created property rights around which individuals’ interests have vested.
[170] The 1st respondent urges the Court to depart from the Mary Wambui case, but has a sufficient basis been laid? Has any of the foregoing principle been met? Counsel contended that the Mary Wambui case was decided on the basis of unique facts before the Court and that the present case raises a different scenario. I do not agree with counsel. This Court’s decisions are binding as provided by Article 163(7) of the Constitution. Consequently, this Court cannot make decisions just to fit a particular case. Its decisions are arrived at after detailed consideration and are meant to finally settle legal controversies and shape the Country’s jurisprudence. This was stated in Jasbir thus:
“[60] The emerging lesson is that the decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, will stand as the binding reference-point in the norms governing the judicial process. Such a position is vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustain the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provide sanctity for the legitimate actions of the people.”
[171] Suffice it to state that a decision of this Court is always intended to settle a fundamental question of law and has to be departed from only after a sufficient ground has been established. In the present case, I do not think that the 1st respondent has put forward a compelling case to justify the Court not following the Mary Wambui decision.
[172] Further, counsel for the 1st respondent contended that parties are bound by their pleadings and the appellant had not pleaded this ground. I agree with counsel that indeed the correct legal position is that a party who comes to court to seek redress is bound by his pleadings. Counsel citedFerdinard Ndung’u Waititu vs Independent Electoral & Boundaries Commission & 8 Others(2013) eKLR in support of his submissions. In that case, Justice R. M. Mwongo, PJ held:
“The third principle is that, as in all litigation, a petitioner is bound by his pleadings. It is common that a petitioner will file a petition and will in the course of the proceedings veer away from the initial track. This puts the opponents into a difficult position in knowing what the real case they must answer is, and what it is the court must determine. The point was well put by Justice kimaru in MAHAMUD MUHUMED SIRAT V ALI HASSAN ABDIRAHMAN AND 2 OTHERS NAIROBI PETITION NO. 15 OF 2008 [2008] eKLR where he stated that:
“From the outset, this court wishes to state that the petitioner adduced evidence, and even made submissions in respect of matters that he has not specifically pleaded in his petition. It is trite law that a decision rendered by a court of law shall only be on the basis of the pleadings that have been filed by the party moving the court for appropriate relief. In the present petition, this court declined the invitation offered by the petitioner that required of it to make decisions in respect of matters that were not specifically pleaded. This Court will therefore not render any opinion in respect of aspects of the petitioner’s case which he adduced evidence but which were not based on the pleadings that he has filed in court, and in particular, the petition.”
[173] The honourable Judge of the High Court is right and I am not about to depart from this legal principle. The Court of Appeal in Independent Electoral and Boundaries Commission & another v. Stephen Ndambuki Muli & 3 others, Elections Petition No. 2/2013 reiterated this position citing and endorsing the dictum of Lord Denning in JONES Vs. NATIONAL COAL BOARD [1957]2 QB 55 that;
“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.”
[174] While this is the case though, I would like to state that this principle refers to issues as framed by parties and reliefs that border on the rights and obligations as between parties. However, a question of nullity of proceedings that borders on jurisdiction does not qualify as settling or calling for a determination as regards rights and obligations as between parties in litigation. It is a legal question. This is why it can be raised at any time, by any party and even by the court itself.
[175] Commenting on Nigerian jurisprudence, Akintunde Esan, in his paper, The Principles of Law on the Jurisdiction of Courts of Law in Nigeria writes:
“The jurisdiction of a court of law is a very hard matter of law which is donated by the Constitution and the enabling statute. A court cannot confer or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution”.
Mr. Akintunde continues and emphasis the centrality of jurisdiction in litigation citing Nigerian case law thus:
“In Nasir v. Kano State Civil Service Commission, per Ogbuagu, JSC in his concurring judgement held as follows:
It is now firmly settled that issue of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of court, cannot dictate when and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court”.(Emphasis provided)
[176] Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question. Recently, the Court of Appeal did this in Ferdinard Ndungu Waititu v. The Independent Electoral and Boundaries Commission and eight others, Civil Appeal No. 324 of 2013, in which Kiage, JA observed with regard to the competency of the appeal thus:
“When the appeal first came for hearing before us, we raised suo motu, a question on the competence aspect (sic) in light of section 85A of the Elections Act and invited the parties to address us on the same. We in particular drew the attention of the parties to the decision of this Court in PATRICK NGETA KIMANZI VS MARCUS MUTUA MULUVI & OTHERS, CIVIL APPEAL NO. 191 OF 2013…All counsel expressed the view that the question was an important one on which they needed time before addressing us.
…
As I have previously mentioned this was not an issue raised by any of the respondents. It is the Court itself that sought the parties’ views on the matter since it goes to the very foundation of the appeal.”
[177] In Ocheja Emmanuel Dangana v Hon. Atai aidoko Aliusman & 4 Others, SC. 11/2012 (The Dangana case) Judge Bode Rhodes-Vivour, JSC said thus:
“A successful preliminary objection terminates the hearing of the appeal…Jurisdiction has always been a threshold issue. It must be decided once it is raised and quickly too. A trial or a hearing conducted without jurisdiction amounts to a wasted effort, a complete nullity no matter how well the matter was decided. That explains why the issue of jurisdiction can be raised at any time, in the trial court, on appeal, or in the Supreme Court for the first time.” (Emphasis provided).
[178] Consequently while in agreement with counsel for the 1st respondent that a party is bound by his pleadings, I hasten to add that a question of competence of proceedings which borders on jurisdiction of the court to admit such proceedings does not fall to be left to the discretion of parties’ pleadings as the same is a matter that can be taken up by the Court suo motu. It is true that the appellant in this matter did not plead for dismissal of the appeal on the ground of nullity but raised it in submissions. However, I have no doubt in my mind that the record of appeal having been filed in this Court, the Court will have perused the same on its own accord and upon establishing the time question, raised it with the parties. A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it; and to also warn itself that the matter before it is one which it should admit under its jurisdiction for consideration.
[179] I reiterate this Court’s noble but sacred mandate under section 3 of the Supreme Court Act, 2011, to establish a pragmatic indigenous jurisprudence founded on good governance and the rule of law. Such jurisprudence cannot be founded on divergent decisions in cases where the facts are similar. Consequently, I am satisfied that this matter was filed outside the 28 days required by the law. This is a fact which as I have already stated, was not disputed by the respondents. The challenge that this issue was not pleaded does not hold given the holding of the majority and my holding herein.
[180] The question which this Court ruled on in Mary Wambui case and in the Lisamula case is one and clear: the petition at the High Court was filed out of time. This is the same question that we are called upon to rule on in this case. The common-law doctrine of precedent stipulates that it will be for the good of all that similar cases in facts are determined in a similar manner. This is what this Court addressed in the Lisamula case when it emphasised the need for coherence of this Court’s decisions thus [at paragraph 123]:
“The instant matter was pending in the Court of Appeal, and thus, the finality clause does not apply; the matter falls for determination squarely on the precedent set in the Mary Wambui Case. Just as in the Jasbir Rai Case, this Court has recently affirmed the need for certainty in the interpretation and application of constitutional provisions. That principle should be upheld in the application of judicial precedents. The learned Chief Justice in his concurring opinion, in the Gatirau Peter Munya Case, Petition No. 2B of 2014, thus observed (paragraph 233):
“Ultimately, therefore, this Court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of the various interpretative frameworks duly authorized. The overall objective of the interpretive theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya” [emphasis supplied].”
[181] The upshot of the foregoing is that I agree with the majority finding that the petition at the High Court in this matter was filed outside the constitutional timelines of 28 days after the declaration of results.
[182] Hence, all the proceedings at the High Court and the Court of Appeal that sprung from a petition that was a nullity are also null and void. Hence this Court does not have jurisdiction to entertain this appeal. I refer to the recent findings in the Lisamula case which this Court held that [at paragraph 125-126]:
“Further, having found that these proceedings were a nullity, we hold that we have no jurisdiction. This Court cannot entertain a matter that is null and void ab initio as a court of law cannot legitimately consider an issue in which it has already declared that it has no jurisdiction. We have severally cited the dictum of Nyarangi, JA in the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 that jurisdiction is everything and where a court of law holds it has no jurisdiction, it should down its tools. In the Mary Wambui case that was the legitimate route that this Court took once it found that the proceedings were a nullity and it had no jurisdiction. Such a pragmatic approach cannot be departed from in this matter.
Consequently this Court’s pen rests”.
[183] For the foregoing reasons, I concur with the majority that the proceedings in the High Court were a nullity ab initio, having been premised on a petition filed out of time. On the basis of the“Lillian S” case, this Court should have downed its tools and not delve into any other question on their merits. With much respect and deference, I would disagree with my brothers and sisters in the majority when they did not rest the matter at this point and went ahead to entertain consideration of other issues on merit.
[184] In my view, the decision of the majority with regard to not downing their pens upon making a determination that the High Court proceedings were a nullity, and delving into other questions of merit, is a departure from the Mary Wambui case and the Lisamula case. While this Court has the jurisdiction and discretion to depart from its past decision, as I have already discussed in this opinion, there is no justification to do so in this case. Both in the Mary Wambui case and the Lisamula case, there were other questions which this Honourable Court identified as falling for determination. All those questions had a ‘great constitutional’ bearing as the Supreme Court is bestowed with jurisdiction and the mandate under section 3 of the Supreme Court Act, No. 7 of 2011 to settle constitutional questions with finality. However, this Court held, and rightly so, that having found that the proceedings in the two cases were a nullity abi initio, the Court will down its tools; and it did not proceed to determine the other framed issues.
[185] My brothers and sisters in the majority have cited with approval the sentiment of Mutunga, C.J. & P. in the Jasbir Singh Rai case [paragraph 81]:
“[I]t will be good practice for this Court to take every opportunity a matter affords it, to pronounce [itself] on the interpretation of a constitutional issue that is argued either substantively or tangentially by parties before it.”
While I agree with the general principle enunciated by the Honourable Chief Justice that the Supreme Court should be ready to pronounce itself on the interpretation of a constitutional issue, I do not humbly think that the context of this present case do give rise to a constitutional moment for the Court to seize and go into any other issues after making a finding that the petition was a nullity ab initio and that the Court of Appeal and the High court lacked jurisdiction to hear it.
[186] With tremendous respect to my brothers and sisters, it is my opinion that such a constitutional moment as contemplated by the Honourable Chief Justice can only arise where the Court is satisfied that it has jurisdiction. Jurisdiction is everything and as I held in the Jasbir Singh Rai case, such a moment will only arise where the matter is rightly before the Court: the matter should be substantively brought before the Court and not tangentially.
[187] Hence, it is my opinion that the Court should have stopped upon making the finding it made on this first issue alone. As I have agreed with the majority only in respect to the issue of nullity, I endorse all the final orders proposed by the majority as the orders of the Court.”
Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR
If you are interested in reading the complete judgment including the majority decision as published by National Council for Law Reporting (Kenya Law) click this link /kenyalaw.org/caselaw/cases/view/100726/
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