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HON. JUSTICE JAMES OGOOLA, JA, READ THE
JUDGMENT OF THE COURT:
[1] This was a slow and convoluted case. It wound its tortuous way through
the maze of the corridors of this Court at less than the proverbial snail’s
pace. The original Reference, lodged in November 2006, sought an
interpretation and application ofthe East African Community Treaty (“the
Treaty”), regarding the validity of the nomination and election of Kenya’s
representatives to the East African Legislative Assembly (“EALA”). The Court
heard the Reference, and concluded that Kenya’s National Assembly did not
undertake an election within the meaning of Article 50 of the Treaty; and
that the Election Rules in issue infringed the provisions of that Article
50. The Court ordered the Government of Kenya, through its Attorney General,
to pay the costs of the Reference. Thereupon, Mutula Kilonzo & Co.,
Advocates for the claimant then lodged a bill of costs for the sum of US $
5,622,528.69. On 19/12/08, the Registrar of this Court acting as Tax Master,
taxed the bill to US$ 2,033,164.99. The Attorney General was aggrieved by
the decision of the Registrar. Under the Rules of Procedure of the EACJ
(“Court Rules”), any party aggrieved by the decision of the Registrar as Tax
Master may appeal by way of a reference to a single Judge of the Court whose
decision is final. However, the Attorney General did not appeal until the
prescribed period within which to appeal lapsed.
[2] It was against this background that the Attorney General, on 3/04/09,
applied to the First Instance Division of this Court, to extend the time
within which to file a taxation reference. A single Judge of that Division (
BUSINGYE, PJ), acting pursuant to Rule 114 of this Court’s Rules of
Procedure, dismissed the application. The Attorney General then sought to
appeal to this Appellate Division, against the Ruling of the single Judge.
His Application, No. 4 of 2009 for that Appeal, was filed out of time;
whereupon he filed yet another application for extension of time. On
16/10/2009, the First Instance Division dismissed the application for
extension of time. Undaunted, the Applicant sought to appeal against the
refusal to extend time. However, that Application too was itself filed out
of time. The memorandum and record of appeal could not be duly served on the
Respondents, on account of expiry of time. Accordingly, (in Civil
Application No. 2 of 2010 filed on 19/03/10), the Applicant once again moved
the Court, under Rule 4 of the Court’s Rules, for an extension of time to
enable service out of time, beyond the 7 days prescribed by Rule 89(1) of
the Court’s Rules.
[3] For their part, the Respondents had in the meantime filed Application
No. 1 of 2010 of 5/03/10, praying the Court to strike out the Applicant’s
purported appeal. In the midst of all this confused state of affairs, the
Applicant once more applied to the First Instance Division (before ARACH,
DPJ) for yet another kind of redress. Very sensibly the learned Judge,
noting that the same matters were at that time already before the Appellate
Division, declined jurisdiction and dismissed that particular application.
[4] Eventually, this appeal to the Appellate Division (for extension of time
to serve the memorandum and record of appeal), was duly heard and granted on
2/06/2010, with an order to backdate the date of service to 13/01/2010. With
that the first phase of the long, slow saga of the case ended – yielding
place to the next phase: namely, the hearing of the Applicant’s appeal
against the Ruling of BUSINGYE, PJ. In that appeal, the Appellant (the
Attorney General of Kenya) sought a review of the exercise of discretion by
BUSINGYE, PJ. In this regard, the Applicant’s Skeleton/ Written Arguments
state that:
“The Gravamen of the appellant argument is that the honourable judge failed
to exercise his discretion in accordance with the law. It is trite law that
the Court of Appeal can interfere with the discretion are(sic) decision of a
judge where to (sic) the following matters can be discerned.
1. That the Judge misdirected himself in law.
2. That he misapprehended the facts.
3. That he took in account of (sic) considerations of which he should not
have taken account.
4. That he did not take account of consideration of which he should not
(sic) have taken account.
5. That his decision albeit it (sic) discretionary is plainly wrong.”
[5] From the outset, this Court wishes to dispose of one critical concern in
this appeal, and one that both parties seemed to have swept under the rag –
namely:
Whether the Appellate Division should be seized of this appeal at all, given
the existence of Rule 59 of this Court’s Rules of Procedure. It is crystal
clear that a single Judge of the First Instance Division has authority to
entertain certain specified interlocutory matters. Among such matters are
application(s) for “extension of time prescribed under the Rules” – pursuant
to paragraph (2) of Rule 59. Accordingly, BUSINGYE, PJ was totally within
the scope and ambit of this Court’s Rules when, as a single Judge, he
entertained the Attorney General’s application for extension of time.
[6] However, as to whether the Attorney General, being dissatisfied with the
decision of the single Judge, could or could not then appeal to this
Division, is quite another matter – requiring careful analysis of the law.
On the face of it, this Court’s Rules of Procedure appear to bar any such
direct appeal from a single Judge of the First Instance Division to this
Appellate Division. In this regard, Rule 59 (3) states quite categorically
that:
“A party dissatisfied with a decision of a single judge may apply orally to
the judge at the time when the decision is given, or by writing to the
Registrar within seven (7) days after a decision of the judge to have the
order, direction or decision of a single judge varied, discharged or
reversed by full Court.”
[7] Learned Counsel for the Respondents (Mr. T.J.Kajwang), sought to bolster
the meaning of that Rule with yet another – namely, Rule 83, which provides
as follows:
“Whenever application may be made either to the First Instance Division or
to the Appellate Division, it shall in the first instance be made to the
First Instance Division, unless specific rules provide otherwise.”
[8] It is true that a reading of Rule 59 together with Rule 83, appears to
be unequivocal in suggesting that an appeal from the judgment of a single
Judge of the First Instance Division of this Court should lie, not directly
to this Appellate Division, but rather to a full bench of the First Instance
Division. That, on its surface, is an eminently attractive and logical
interpretation. On the other hand, the Court is persuaded by a counter
argument – namely, that a more apposite position is to read Rule 59, not
with Rule 83, but with Rule 77 – and then to interpose the provisions of
Article 35A of the Treaty, into the resultant equation (of reading together
Rules 59 and 77). Rule 77 reads as follows:
“An appeal from the judgment or any order of the First Instance
Divisionshall lie to the Appellate Division on:
(a) points of law;
(b) grounds of lack of jurisdiction; or
(c ) procedural irregularity.”
[9] As is evident from the above quotation, Rule 77 is the more specific
rule governing “appeals”, than is Rule 83 (which speaks to applications, in
general, that may be made to the two Divisions of the Court). Rule 77 is
couched in terms of appeals from “the judgment or any order of the First
Instance Division”. That language encompasses, directly, “orders” of the
Court – such as the order that was handed down by BUSINGYE, PJ. Similarly,
the Rule encompasses, not only the judgments or orders of the full bench of
the First Instance Division, but also those of a single Judge (such as
BUSINGYE PJ). This is so because of the express definition, in Article 2 of
the Treaty, of the term “judgment”– namely:
“judgment’ shall where appropriate include a ruling, an opinion, an order;”.
[10] Secondly, the matter at hand, in this instant appeal, falls squarely
within the four walls of Rule 77 – namely, that the appeal is an appeal
against “points of law”, as well as against “procedural irregularities”. As
will be seen at once, the provisions of Rule 77 are but a mirror reflection:
paragraph for paragraph, phrase for phrase, word for word, and comma for
comma, of Article 35A of the Treaty.
[11] That Article is a “new” Article, introduced at the time and in the
course of the Second Amendment of the Treaty (in August 2007) when the Court
was, among other features, drastically restructured into a First Instance
Division and anAppellate Division. The Article eloquently bespeaks the
effect and consequence of that historic restructuring, and the devolution of
jurisdiction between the two Divisions: the one, the Trial Chamber; the
other, the Appellate Chamber – with litigants of the Court afforded an
unfettered right of liberty to appeal the judgments of the First Instance
Division, to the Appellate Division.
[12] That Article puts the matter beyond any possible debate whatsoever. It
is trite law, and a fundamental doctrine and tenet of statutory
interpretation, that where subsidiary legislation (such as the Court Rules,
in this instant case) conflict with or are in any way inconsistent with the
provisions of a parent legislation (such as the EAC Treaty, in this case),
the provisions of the subsidiary legislation must yield to those of the
parent one – to the extent of the conflict or inconsistency. In the instant
case, there is a clear inconsistency – if not outright conflict – between
Rule 59(3) of this Court’s Rules, and Article 35A of the Treaty. The Court
Rules are made pursuant to Article 42(1) of the Treaty. Accordingly, the
Court Rules, which derive their life and existence from the Treaty, are of a
legal hierarchy that is inferior to that of the Treaty. Indeed Article 42(1)
itself specifically provides that:
“The Court shall make rules of the Court which shall subject to the
provisions of this Treaty, regulate the detailed conduct of the business of
the Court.” [emphasis added]
[13] Indeed, Rule 77 was made after the Second Treaty Amendment, precisely
to comply with the amended Treaty.
[14] Accordingly, in the event of a conflict or inconsistency between the
Rules, or a particular Rule, and a provision of the Treaty, the Rule must
yield place of priority to the Treaty. This means that, in the instant case,
Article 35A of the Treaty, overrides Rule 59(3) of the Court’s Rules.
Therefore, the Appellate Division of this Court may entertain an appeal
(such as the instant one), that is lodged with it directly from a single
Judge of the First Instance Division – notwithstanding the apparent
constraints of Rule 59(3) of this Court’s Rules. Needless to say, the legal
situation here ought to be regularized at the earliest appropriate
opportunity – including re‐writing the Court Rules, and re‐visiting the
Treaty provisions.
[15] That, is the state of the law. But in any event, in this particular
appeal, the facts and history of the litigation, as set forth at the outset
of this judgment, are quite disturbing. Their chronicle, adds up to a long
litany of one application after another ad infinitum; and a catalogue of one
misstep after another ad nauseum – all to the sad and costly detriment of
the litigants. Justice demands that the successful litigants should enjoy
the fruits of their litigation; and that both litigants should rest from the
trauma of un‐ending litigation. There must be an end to litigation. This
Court cannot and must not at this outstretched stage, in subservience to
Rule 59(3) of the Court Rules (which Rule has, in any event, now been
impugned), remit the resultant decision of this appeal back to the full
bench of the First Instance Division. To do so would, in all probability, be
tantamount to launching yet another ponderous odyssey of a succession of
applications and appeals – which would, once more, end at the gates of this
Appellate Division. This Court must, in the interests of justice, preempt
any such drawn‐out scenario: which would be but a recipe for patent
injustice to the Parties, coupled with judicial irresponsibility, if not
judicial tyranny, by the Court in perpetuating the injustice of this
never‐ending litigation.
[16] In this regard, it behoves stating that to remit this matter back to
the full bench of the First Instance Division of this Court would, to all
intents and purposes, be to subject the matter to an “appeal” – in as much
as (i) the single Judge sitting pursuant to Rule 114 of the Court’s Rules,
is in truth exercising the powers vested in him/her alone, on behalf of the
whole First Instance Division. Accordingly, in the event that the full bench
is called upon to entertain the judgment of the single Judge, it would do so
as an “appellate” forum. To that extent, the full bench of the First
Instance Division (just like this Appellate Division of the Court) would
interfere with the exercise of the discretionary powers of the single Judge
only for very specific reasons – identical to the ones now canvassed in this
Appellate Division. Why then duplicate and elongate the review process? This
position was very ably considered and settled by the Court of Appeal of
Kenya in the case of Mwangi Vs Kenya Airways Ltd [2003] KLR 486 at p.487 to
the effect that:
“1. A single appellate judge sitting alone and acting under rule 4 of the
Court of Appeal Rules (Cap 9 sub leg) is exercising the powers vested in him
alone on behalf of the whole Court. A full court can only interfere with the
exercise of those entirely discretionary powers for very specific reasons.
2. The circumstances under which the full court would be entitled to
interfere with the exercise of the discretionary power by a single judge are
similar to those under which an appellate court would be entitled to
interfere with the exercise of a discretion by a trial judge”.[emphasis
added]
[17] We are of the view that it would be patently meaningless to remit this
matter to the First Instance Division to do exactly that which this
Appellate Court is now called upon to do. We must eschew playing a game of
roulette with the fate of litigants who come to this Court for expeditious,
effective, efficient, effectual, and cost effective remedies.
[18] We now turn to the substantive issues raised by the Attorney General
(and the Respondents) in this appeal. Learned Counsel, Mr. Ombwayo, for the
Attorney General, raised, in all, a hefty total of twelve grounds of appeal.
However, at page 24, of his own “ Skeleton/ Written Arguments”, the Learned
Counsel was content to collapse the twelve grounds into four issues only,
which he then proceeded to argue before us. In effect, Counsel Kajwang for
the Respondents also agreed with the proposition that the four issues
effectively embrace all the substantive factual issues arising from this
appeal.
[19] Specifically, Mr. Kajwang stated that:
“Facts leading to this appeal have been accurately described by Learned
Senior Principal State Counsel appearing on behalf of the Attorney General
of the Republic of Kenya, we see no reason to reproduce them in our
submissions”.
[20] Accordingly, the Court hereby adopts those broad issues as the real
grounds of this appeal, namely: that the learned single Judge erred in
exercising his discretion, in as much as he failed to consider, or
considered only inadequately or inappropriately, that the Attorney General’s
delay to effect service was caused by:
(i) the fact that at the material time, all the Court’s staff were on
Christmas Vacation;
(ii) the Applicant’s Counsel was attending to a family tragedy ‐ well beyond
his own control;
(iii) the internal consultations between the Attorney General, the National
Assembly and other Government Ministries.
[21] We will now proceed to consider the veracity of each one of these
grounds seriatim. Nonetheless, we need to emphasize that it is not the role
of an appellate bench in a case of this kind, to review the substantive
merits underlying the grounds of appeal. Rather, the role of this Court is
to review the propriety of the exercise of discretion by the trial Judge on
each of these grounds. The question to ask, in respect of each ground, is:
Whether the trial Judge in reaching the decision(s) he reached, did so on
the basis of a proper, judicious exercise of his discretion? Did he arrive
at the decision after a judicious process rooted in dispassionate and
empirical analysis of the facts and the law; or merely on a flight of fancy,
unanchored in any sound basis? If the Judge applied the empirical process,
it matters not that he arrived at the “wrong” decision, unless suchdecision
is plainly wrong. If, on the other hand, he engaged only in the fanciful or
the whimsical, then it matters little that he arrived at the “right”
conclusion, to the extent that the process and procedure is plainly and
patently misconceived, irregular, unjust, and wrong. At the heart of the
Appellate Court’s review is the question: Did the Judge exercise his
discretion properly (i.e. judicially)? On this point, both Counsel (for the
Attorney General and the Respondents) were in total agreement as to the
applicable Principles of law – namely, that an appellate court may interfere
with the exercise of the trial Judge’s discretion only where the Judge:
(i) misdirected himself/herself in law;
(ii) misapprehended the facts;
(iii) took into account matters/issues he/she should not have taken
intoAccount;
(iv) did not take into account matters/issues he/she should have taken
intoAccount;
(v) reached a decision which is plainly wrong.
[22] In this connection, this Court is in consonance with the principles
laid down by Mwangi’s case (supra). In our view, that case recasts into
brighter light the fundamental principles specifically enunciated by, most
probably, the oldest case on this point in the East African jurisdiction –
namely: MbogoVs Shah [1968] EA at 93. The Principles of this line of case
law are that before an appellate court (or, as the case may be, a full bench
of the same court) can interfere with the exercise of discretion by a trial
Judge/single Judge, it must be satisfied that in coming to his/her decision,
the Judge in question:
(i) took into account some irrelevant factor(s);
(ii) failed to take into account some relevant factor(s);
(iii) did not apply a correct principle to the issue (such as, for instance,
misdirection on a point of law, or misapprehension of the facts);
(iv) taking into account all the circumstances of the case, the Judge’s
decisionis plainly wrong.
[23] Taking into account all the clear Principles and considerations
embedded in our law, we will now embark upon a careful, clinical, and
forensic examination of the processes by which the learned BUSINGYE PJ dealt
with each one of the four broad issues raised in complaint by the aggrieved
Appellant/Attorney General. In doing so, we would wish to emphasize that the
trial Judge in this particular case, was dealing with Rule 4 of the EACJ
Rules, which requires a qualitatively higher standard to extend time
(namely, “sufficient reason”), than is the case with the standard of “any
reason”, which is prescribed under the corresponding Rules in some of the
EAC Member States (notably Kenya). Accordingly, the trial Judge in
exercising his discretion to extend time in this case, had to and did
indeed, raise the bar appropriately to meet the more rigorous standard of
the Community Rule.
1. Christmas Vacation
[24] The Attorney General’s submission on this issue was to the effect that:
“the learned Judge erred in law and, therefore, misapplied the law in
holding that the ground of hardship due to Christmas Vacation was being
cooked up, when it was very clear from the record that the entire staff of
the East African Community including the Court, went on vacation during
Christmas Vacation”.
[25] The question for this Court to ask is not whether the trial Judge erred
in reaching the conclusions he reached on this issue. Rather, the question
is whether and to what extent, and in which manner the Judge considered the
issue that was before him regarding the “Christmas Vacation”. We find that,
indeed, the Judge dealt with this issue in depth and at quite some length.
At page 3 of his Ruling, the Judge listed, by way of summary, Mr. Ombwayo’s
grounds of application as including:
“That the application could not be filed in time due to Christmas Vacation
that was being observed by the staff of the East African Court of Justice
and the Registry was not manned.”
[26] Having so flagged the issue, the Judge then proceeded to diagnose and
analyse the issue – starting thus:
“canvassing the first of the grounds, learned Counsel submitted that it was
within his knowledge that between the 15th December and 5th January, the
entire staff of the East African Community go on Christmas vacation.”
[27] Next, the learned Judge (at page 5 of his Ruling) considered the
counter arguments of opposing Counsel, Mr. Kajwang, to the effect that care
should be taken not to confine Christmas day, official holidays, Court
Vacation, and the computation of time under Rules 2, 3, and 19 of this
Court’s Rules of Procedure. Then (at page 7 of the Ruling), the Judge
proceeded to cast his mind to the applicable jurisprudence: Case law, such
as Boney KatatumbaVsWaheedKarim, Civil Application No. 27 of
2007(unreported), Supreme Court of Uganda; and Mohamed &Muigai Advocates
VsKang’ethe& Co. Advocates, Kenya HCCS No.234 of 1999 (OS). The Judge
concurred with the Respondent’s Counsel that, indeed, there was here
confusion between Christmas day as an official holiday (within the
provisions of Rule 2 of the Court’s Rules; Court Vacation (determined by the
President of the Court and gazetted under Rule 19); official holidays,
including Saturdays and Sundays; and Court Vacations. The Judge took the
Senior State Counsel to task to show specifically which rules provide for
“Christmas Vacation” (Counsel conceded he knew of none); whether there was
any “Christmas Vacation” declared by the Court’s President; whether it was
fact or only Counsel’s belief that indeed the Court staff were on leave
during their “Christmas Vacation”; and whether, in fact, Counsel had not
filed documents during the 2007/2008 “Christmas Vacation” – (he had).
[28] It is evident, then, that the trial Judge not only dealt with the issue
of Christmas Vacation; but, indeed, he did so: carefully, meticulously
adequately, firmly, extensively, and fairly (i.e. took into account both
sides of the argument). He quoted the applicable rules and the case law, and
reflected deeply on the facts of the case (including the fact that Counsel
had indeed filed documents during the period in contention). In all this,
the Judge did not decide anything on the spur of the moment, nor did he
treat the issue superficially, conjecturally or capriciously. He did so
advisedly and judicially. There is, thus, no reason for this Appellate Court
to fault the trial Judge on this ground. Accordingly, that ground fails.
2. Family Tragedy
[29] Learned Senior State Counsel, averred that the delay in filing the
documents was aggravated, in part, by a family tragedy that befell him
personally – namely, toattend to his two brothers in the rural family home;
and that the brothers were attacked, one after the other, by bandits who
left them gravely injured and helpless. In this regard, the Appellant’s
complaints were that the Judge failed to consider certain unchallenged
averments; considered instead irrelevant matters (such as that the Attorney
General’s Office, being operational, was not incapacitate due to Mr.
Ombwayo’s family misfortune); and that the Judge misapprehended the fact
that re‐allocation of the file on this case to another Counsel in the
Attorney General’s Chambers, would have required prior preparation of a
brief to enable the new Counsel understand the dispute.
[30] Here again, the task of the Appellate Court is not to try the matter on
its merits.
[31] Rather, it is to ask: Whether the trial Judge exercised his discretion
judicially in reaching his decision? In his Ruling (at page 10), the learned
trial Judge dealt extensively with this issue. In summary, the Judge
challenged Counsel to prove the fact of the multiple bandit attacks on his
brothers. Counsel could not mention the dates of the attacks (except one).
He could not indicate when he travelled to and returned from his rural home.
He could not produce any medical, police or similar documentary evidence
relating to the attacks. The Judge noted MsSijeny’s affidavit which
challenged MrOmbwayo’s own affidavit concerning these attacks. He even
granted MrOmbwayo the opportunity to depone a further affidavit. To all
this, the Judge recorded the following:
“He filed nothing in evidence. He personally sought and was granted leave to
file a further affidavit. He did file one on 11th June 2009. He did not
explain any of these issues”.
[32] Then, on p.11, the learned Judge concluded, thus:
“Upon careful examination of this ground, I could not tell with certainty,
whether the unfortunate tragedies actually happened, whether if they
happened [Counsel] went home to assist or whether nothing at all happened.
With due respect, I find [Counsel’s] honesty, candour and effort in
explaining his family tragedy far less than I would require to admit his
story in court {see Mohamed &Muigai Advocates (supra). I am alive to
established case law that mistakes of counsel should not be visited on his
client (see ZamNakumansi v SulemanLule, civil Application No.02 of 1999 (SCU).
The veracity of his story was challenged way back in May 2009 in MsSijeny’s
affidavit. He had all the time until 21st August 2008 to prove it. He knew
it was his [own personal] burden as well as Counsel for the applicant. There
is clear authority that discretion is exercisable on the basis of evidence
and sound legal principle; and that the duty of placing the necessary
evidence before the court to enable it exercise its discretion is squarely
on the applicant; see Bogetutu Farmers vs Mohamed Hassan Yonis HCCC No. 154
of 1992.
In my view the applicant did not discharge this duty.”
[33] From the above, it is clear that the trial Judge was seized of the
issue, explained it, asked all the questions relevant and necessary to
establish the existence of the double tragedy, granted counsel every
opportunity to prove the matter (including by further affidavit to counter
MsSijeny’s challenges promptly and effectively). He did not. Instead, he
took all the months of January, February and March – a total of
approximately 90 days in all – to file this appeal. We cannot find anything
at all untoward in all this, with which to fault the trial Judge concerning
this particular ground of appeal. On the contrary, we are alive, rather, to
the all ‐ too‐ revealing dialogue (recorded at page 145 of the Record of
Appeal) between the Court and Counsel on this aspect of the matter – namely:
“Justice Busingye: Okay, when Mr. Ombwayo’s family gets problems, doesthe
Attorney General’s Office get incapacitated?
Mr. Ombwayo: I (sic) cannot get incapacitated but …of course with those
personal problems, I did not even have time to brief the Attorney General on
the issue of time limits. But as I said in my affidavit, those were my
personal problems. It could have been an oversight on me not to have briefed
the Attorney General and may be handed over the file for reallocation to the
Attorney General to allocate it to another Counsel … I did not hand over the
file for reallocation to the Attorney General . That is a mistake I admit to
have made.”
[34] In addition to the above, this Court takes judicial notice of the fact
that the Attorney General’s Chambers is a fully – fledged State Office with
many counsel (of whom MrOmbwayo is only one; and indeed, a Senior Principal
Officer). Any one of his juniors, let alone colleagues, could have stepped
into his shoes to rescue the situation.
[35] Learned Counsel argued very ingeniously both before the trial Judge and
before this Court, that his mistakes as counsel (of which this Court finds
quite a bundle), should not be visited on his client. This is all too true.
Just like the trial court, we too are of course alive to and sympathetic
with the position canvassed by Counsel. But then it has to be remembered
that it is Counsel himself who initiated this ground; who injected , so to
speak, the personal dimensions of his family into the official affairs of
his client; and who having brought it to the fore, strenuously argued it
before this Court and the single Judge in the court below. In these
circumstances, he has himself to blame. In a sense, his argument is that if
he succeeds on this second ground, then his client stands to gain. But if he
fails, then his client should not suffer. The principal answer to all this,
is that he cannot have his cake and eat it at the same time. He must bear
his cross. In this regard,we would recall, with approval, the stand once
taken by WAKI, JA when faced with a similar predicament in the case of
Phoebe Ndunda& Others v. Mwakini Ranch Co. Ltd &Kitui Town Council, Civil
Application No. NAI.448 of 2001 (CA Kenya). His Lordship stated that:
“The opportunity given to applicants was squandered and if it is their case
that the advocate was to blame, they are at liberty to seek recompense from
the advocate.
As it is, the applicants appeal to sympathy rather than sound factual and
legal basis in seeking the orders above. I would be surrendering my
discretion to whim and caprice if I acceded to the application on that
basis. I decline to do so.”[emphasis added]
[36] In the circumstances of this appeal, therefore, the second ground fails
– irrespective of where the chips fall.
3. Internal Consultations
[37] The Attorney General’s third ground of appeal was that the delay to
file in time was a consequence, in part, of the necessity for the Attorney
General to consult with both the National Assembly, and the Treasury of
Kenya on whether or not to pay the suit costs. Learned Counsel’s complaint
on this issue was that:
“The Honourable Judge misapplied the law on discretion in discussing the
[sic] the explanation on consultation. The magnitude of the amount of money
taxed required consultation between the three Ministries of the Attorney
–General, National Assembly, and the Ministry of EA Cooperation. The Hon
Judge misapplied the law and therefore fettered his discretion by requiring
the appellant the [sic] explain every minute delay. The court should have
considered all reasons of the delay…”
[38] A cursory reading of the above ground, leaves one with some amount of
confusion. First, the first sentence appears to merely make the assertion
(without more) that the trial Judge misapplied the law of discretion.
Secondly, thesentence on fettered discretion does not seem to connect with
the first at all. And even if it did, it seems to be a complaint about the
Judge seeking an explanation in too minute a detail. Yet at the same time,
the same Counsel in the final sentence faults the Judge for not having
considered “all reasons of the delay”. Unfortunately, all this leaves one
wondering what exactly the complaint of this ground is? At best, the
complaint is unclear. At worst, it is simply incoherent. Be that as it may,
it was plainly evident that the trial Judge did adequately deal with the
issue of “consultation.”
[39] Once more, the question is not whether the Judge’s decision on this
issue was “right” or “wrong”. Rather, it is whether the Judge’s decision was
arrived at appropriately, after due consideration (i.e. judicially). Pages
12 and 13 of the Judge’s Ruling, deal with this issue of internal
consultations. Briefly, the Judge queried the existence and nature of these
consultations; whether they were oral or verbal or written; and whether
there was sufficient evidence to bear out these consultations. The Judge
stated that:
"The burden was to place evidence before the court and not to assure the
Court that the evidence existed somewhere else. In the unlikely event that
the consultations took place, the Court was not told why they impaired the
capacity of the Attorney General’s Office to file the Reference. Even a
possible settlement, to which the Respondents were not party, would not have
impaired the Attorney General from filing the Reference, just in case.”
[40] And then the learned trial Judge added, with approval, a quotation from
DEVERELL, J, thus:
“In Paul Njorogevs The Attorney General and others, HC Misc case no. 90 of
2004 Justice W.S. Deverell, faced with inability due to negotiations, such
as the inability due to consultations in the present case had this to say;
“… I consider that it was a risky strategy for the applicants to delay
filing the record of appeal on the strength of verbal negotiations, which do
not appear to have been reduced to writing at any material stage. It would
have been prudent to have complied with the requirements laid down in the
rules while the alleged negotiations were ongoing and to have confirmed
their existence in writing at some stage. As it is I am not in position in
which I can make any meaningful decision as to who is telling the truth as
to the existence of the alleged negotiations. The burden of proving their
existence is upon the applicants who now wish to rely upon them and I am of
the view that this burden has not been discharged”.
[41] And then, in virtually identical summation as DEVERELL’s, the trial
Judge concluded as follows:
“This authority summarizes my opinion on this ground. I am not in position
in which I can ascertain whether, in truth, these consultations took place
and, if they took place, why the Respondents were not involved, and whether
the objective was to find a way forward over this matter or to frustrate it.
The burden of proving that they took place, what the objective was, and with
what the result was upon the Applicant who now wish to rely on them. In my
opinion this burden was not discharged. The Respondents cannot be affected
adversely by unevidenced consultations which they knew nothing about.”
It is quite evident from all the above, that the learned trial Judge brought
his mind to the issue of consultations; discussed and dissected it at length
and in depth; asked of Counsel all the relevant questions; considered the
counter‐arguments of the opposing counsel; brought to light the applicable
jurisprudence; and then (and only then), reached his own conclusions on the
matter. Was he wrong on those conclusions? If wrong, was he “plainly wrong”?
The first one of these two questions (to which our answer is No), is not
really for this Appellate Court to ask, let alone to answer, in an appeal ,
(such as the instant one) concerning the exercise of a trial Judge’s
discretion. The second one of those two questions, is appropriate and
necessary. The answer, in this case, is plainly No.
[42] In the result, the Appellant’s third ground of appeal also fails.
[43] This is because the learned trial Judge considered all the salient
issues raised by the Appellant. He did so by, among others, casting his mind
to the case of WasikeVsKhisa& Another, Civil Application No.248 of 2003 (KCA),
[2004], 1KLR 197 – in which GITHINJI, JA, stated that:
[44] It would be a fetter on the wide discretion of the Court to require a
minute examination of every single act of delay and to require every such
act to be satisfactorily explained.”
[45] In light of the above, the trial Judge did cast a comparative
assessment between the explanation for the delay in Wasike’s Case and the
comparable explanation for the delay in the instant case. The Applicant, in
Wasike’s case, produced a full dossier of evidence to support his claim of
having been sick. The dossier was full – complete with dates of
consultation, names of doctors, the relevant court proceedings, the date
thereof, etc. In contrast, the Applicant, in the instant case, did not
produce any documentary evidence. To this, the Judge stated, quite rightly
in our view, that:
“The court did not require him to prove every minute detail of these
stories. All that the court required of him was to place before it the
minimum to enable it form an opinion that what he was saying was probably
true.”
4. Prejudice – Failure to hear subsidiary grounds
[46] In his oral submission before this Court, learned Counsel for the
Attorney General took issue with the fact that the trial Judge, as single
Judge, seemed to judge the application before him only on the above grounds
1,2 and 3; thus failing to consider all the other grounds before him – and,
therefore, rendering himself to be prejudiced in the rest of the matter. We
will make short shrift of this challenge. Counsel’s point, in belabouring
this line of argument, was premised on the trial Judge’s statement (on page
37 of his Ruling) to the effect that:
“upon the above [three] findings alone, this application should fail.”
[47] Now, even if that were all that the trial Judge stated and did on that
matter, we would find no particular fault with it. First, this is common
judicial practice for our courts of law to determine a matter before them on
the basis of only some (not all) of the issues and grounds canvassed by
Counsel – if the particular issues are critical and dispositive of the
dispute. In the instant case, the three grounds were sufficiently
determinative of the application before the Judge. Interestingly, the same
Counsel said as much. Indeed, the fact of three principal issues, coupled
with other lesser issues, was common knowledge among all the participants in
the court proceedings before the single Judge. Counsel Ombwayo himself said
so; and even opposing Counsel, MrKajwang, acknowledged as much when, at
p.150 of the Record of Appeal, he said:
“My learned friend has put emphasis on the merits and I acceptthat it is one
of the things that the Court will look at, but Iwill also be showing you in
the authorities cited by myself and mylearned friend, they have been coded
as possibly, those issues whichare on a secondary level and not the primary
issues which the Courtwants to look at.…..
I have seen the affidavit of my learned friend, MrOmbwayo. It isabout 17
paragraphs. I want to say that a lot of paper hasbeen used because I think
that only three paragraphs are importantin my view, namely, Paragraph 14, 15
and 16….. .i.e. paragraph14 Christmas vacation…paragraph 15 the tragedy that
befell thefamily …. and paragraph 16 that there were some
consultations.Those are the only three reasons. We just want to consider
thesereasons alone and see if they can fit within the principles of lawthat
the case law has developed.”[emphasis added]
[48] It is patently evident that the Court had before it three critical
grounds on which the fate of the application depended. But be that as it
may, it is not at all true, ascontended by the Appellant, that the learned
Judge discussed only the above three grounds. The record shows plainly that,
indeed, after the three primary grounds, the Judge proceeded to consider and
to make findings even on the secondary grounds as well – all of them. We now
deal with those secondary grounds herebelow.
5. Public Interest
[49] The Appellant pressed the point that the “exhorbitant” award of costs
by the Taxing Officer should be impugned on the grounds of public interest –
in as much as payment by the Attorney General of such a hefty sum of money,
would impinge drastically on the welfare of the Public Treasury, eat into
the Public Finances and adversely affect the tax payers of Kenya.
Accordingly, the Appellant argued, the trial Judge should have been alive to
this issue as a matter of “public interest” or “public policy”. The argument
is immensely ingenious and attractive. Indeed for the Attorney General to
pay the suit costs, would involve a significant loss from the Public Purse
of Kenya and would, to that extent, affect the interest of the Public who
are the source of the tax revenues that feed into that public purse.
However, we must be extremely careful with what constitutes “public
interest”, and what does not. A blanket view, to the effect that use of the
taxpayers’ money to pay legal costs constitutes public interest, needs
weighty reflection and deep introspection – for if such argument were
stretched to its logical extreme, then the Attorney General would never,
ever, be condemned by the Courts of law into paying lawful damages, costs
and similar expenses of litigation. In this regard, it bears repeating what
LORD GRIFFITHS so ably proclaimed – namely:
“There is a world of difference between what is in the public interest and
what is of interest to the public” – (see Lim Laboratories Ltd v Evans
[1984] 2 All ER 417, at 435, CA .It is eminently true that paying legal
costs (and especially in hefty sums) out of the Consolidated Fund of the
National Treasury is, of course, a matter of great interest to the public.
Nonetheless, that in itself, need not be a matter of public interest or
public policy. Blacks Law Dictionary (Seventh Edition, 1999, p.1245) defines
“public policy” in the following two senses:
1. “Broadly, principles and standards regarded by the Legislature or by the
courts as being of fundamental concern to the state and the whole society.”
2. More narrowly, the principle that a person should not be allowed to do
anything that would tend to injure the public at large.”
Generally speaking, courts have held public policy to be:
“that principle of the law which holds that no subject can lawfully do that
which has a tendency to be injurious to the public, or the public good.”
‐see Egerton v Brownlow (Earl) (1853) 4 HL Cas at 14 p.196, per LORD TRURO.
[50] Always at the back of the common law concept of what offends the public
interest or policy, are issues of unlawfulness, morality, and similar
reprehensible behaviour. In Janson v Dreifontein Consolidated Mines Ltd
[1902] AC at 491, 492 HL, LORD HALSBURY LC first enumerated the more usual
acts, contracts and transactions normally held to be against public policy
(including; contracts for marriage brokerage, restraint of trade, gaming and
waging, and assisting the King’s enemies). His Lordship then stated that all
these:
“are undoubtedly unlawful things; and you may say that it is because they
are contrary to public policy they are unlawful; but it is because these
things have either been enacted or assumed to be by the common law
unlawful.” [emphasis added]
[51] In the case before us, the essential element for consideration of the
public interest is missing – namely, there would be absolutely nothing
“unlawful”, or “immoral” , or reprehensible about the Attorney General of
Kenya paying litigation costs from the Public Treasury of the Republic. If
anything, such payment would indeed redound to the rule of law, in general,
and to the enforcement of Court judgements, in particular – both of which
are the very essence on which any law‐abiding ship of State is anchored. We
should, as a courtbe circumspect of what LORD HALSBURY (in the Janson case
above (and others e.g. Egerton v Brownlow; Bowman v Secular Society Ltd
[1917] AC at 427), termed as “inventing a new head of public policy”. This
is so because judges are interpreters of the law, not expounders of public
policy; and it is important that the doctrine should only be invoked in
clear cases, in which the harm to the public is substantially incontestable
– see Halsbury’s Laws of England (Fourth Edition Reissue, 1998 Vol. 9 (1),
Para 842. Similarly, the Court should give heed to the following graphic
advice opined by BURROUGH, J in Richardson v Mellish (1824) 2 Bing 229 at
252:
“I, for one, protest … against arguing too strongly upon public policy; it
is a very unruly horse, and when once you get astride it, you never know
where it will carry you. It may lead you from the sound law. It is never
argued at all but when other points fail”.
[52] Having regard to all the above, it will suffice to say that in the
instant case, the trial Judge did, indeed, raise and consider the issue of
“public interest” as canvassed by learned Counsel for the Attorney General.
The Judge engaged Counsel on this at some considerable length. In
particular, his Lordship discussed, especially, the irrelevance of the
quantum of the costs. He opined that the Kenyan public, including the
Respondents, would be interested more in scrutinizing issues leading to the
award of the costs, than merely the quantum of those costs. They would be
interested in issues such as why and how they ended up in this litigation,
whether it was justifiable and unavoidable, why the Reference on Taxation
was not filed on time, and the like. Then, he reached his decision
(dismissing the argument). The decision reached was, therefore, a function
of a well‐reasoned and fair process. Whether the decision emanating from
that process was “right” or “wrong”, is quite a different matter – not for
this Appellate Court to second‐guess. We are satisfied that the trial Judge
exercised his discretion on this issue judiciously (not whimsically, nor
capriciously). He cannot be faulted in any material particular.
6. Prejudice to the Respondents/Ministers
[53] The Appellant’s contention here was to the effect that if the trial
Court had granted the application to file out of time, there would have been
no prejudice occasioned to the Respondents – who were, in any case,
high‐ranking Government Ministers, etc, receiving regular monthly government
salaries. The Court finds grievous fault with this line of argument, and on
very many levels. First, not all the Respondents (eleven in number) were
Ministers receiving Government salaries. On the contrary, at the onset of
this litigation, virtually all eleven were other than Ministers; with many
being in the opposition Political Parties. Second, and even if they were all
or substantially all Government Ministers (as they now are), that would not
avail much in the way of relieving the Respondents’ legal rights or
mitigating their loss. While receiving a regular salary might relieve or, at
any rate, ameliorate the Respondents’ “economic prejudice” (i.e. financial
hardships, etc), it would do absolutely nothing to address, let alone
redress, their “judicial prejudice”.
Conclusion
[54] Undoubtedly, the Appellant had a right to access ultimate justice by
way of appeal. But then, that right was not open‐ended. It was circumscribed
by the Rules of this Court in terms of the requirement of Rule 4 to file the
notice within 7 days. The Appellant did not comply. The delay dragged on
from one month, to two, and ultimately to almost three months: in all, a
delay of some 90 days. Such a delay was, by any measure, inordinate. It was
inimical to the rights of the Respondents, to enjoy the fruits of the
judgment of their long‐standing litigation. It was inimical to the exercise
of the trial Judge’s judicial discretion – which was grounded in equity and
which, like the Appellant’s own application to extend time, was itself
anchored in equity. In short, the Appellant came to equity tardy and untidy
– with soiled hands and inept footwork. Equity eschews indolence. Finally,
it was inimical to the principle of finality to litigation – the principle
in respect of which we catalogued, at the outset of this judgment, all the
convoluted twists and turns that have characterized this hapless litigation
right from the start,all the way to the present. This ubiquitous twisting
and turning must stop, at some point. That point is now. To this end, we
derive comfort in Rule 1 (2) of this Court’s Rules of Procedure, which
mandates this Court to use its “inherent power to make such orders as may be
necessary for the ends of justice…”
[55] In the result, this Appeal is dismissed. The costs of the Appeal and of
the related proceedings, whether in this Appellate Division, or in the First
Instance Division of this Court, are awarded to the Respondents.
[56] It is ordered accordingly.
Dated and delivered at Nairobi, Kenya, this …… day of August, 2010.
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