Case ID:122109

Malindi Law Society v Law Society of Kenya,

Nairobi Branch & 5 others [2018] eKLR

Case Metadata

Case Number:

Civil Application 20 of 2017

Parties:

Malindi Law Society v Law Society of Kenya, Nairobi Branch, Attorney-General, Chief Justice & President of the Supreme Court of Kenya, National Assembly, Law Society of Kenya & National Land Commission

Date Delivered:

19 Sep 2018

Case Class:

Civil

Court:

Supreme Court of Kenya

Case Action:

Ruling

Judge(s):

David Kenani Maraga, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Njoki Susanna Ndungu

Citation:

Malindi Law Society v Law Society of Kenya,

Nairobi Branch & 5 others [2018] eKLR

Case History:

Being an Application for stay of execution of the Court of Appeal decision (Waki, Nambuye, Musinga, Kairu and Murgor, JJ.A,) in Civil Appeal No. 287 of 2016 as consolidated with Civil Appeal No. 3 of 2017 – dated 19 October 2017

Court Division:

Civil

County:

Nairobi

History Docket No:

Civil Appeal 3 of 2017

History Judges:

Agnes Kalekye Murgor, Daniel Kiio Musinga, Philip Nyamu Waki, Roselyn Naliaka Nambuye, Stephen Gatembu Kairu

Case Summary:

Supreme Court denies application for stay declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional

Malindi Law Society v Law Society of Kenya, Nairobi Branch and 5 others

[2018] eKLR

Civil Application No 20 of 2017

Supreme Court at Nairobi

D K Maraga, CJ & P; P M Mwilu, DCJ & VP; M K Ibrahim, J B Ojwang & S N Ndung’u, SCJJ

September 19, 2018

Reported by Ian Kiptoo

Civil Practice and Procedure

-execution of Judgement-stay of execution-stay of execution pending determination of an appeal-

whether

the Application that sought to stay the Judgement of the Court of Appeal setting aside the decision of the High Court declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or vice versa; and insofar as it related to the role of Subordinate Courts with regard to environment and land, had merit

Brief facts

The Matter arose as a result of the Court of Appeal setting aside the decision of the High Court declaring unconstitutional section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or

vice versa

; and insofar as it related to the role of Subordinate Courts with regard to environment and land.

The Applicant moved the Court by Notice of Motion under certificate of urgency seeking Orders that pending the hearing and determination of the intended appeal against the said Judgment, its execution be stayed as the intended appeal was arguable, and would be rendered nugatory if it were in the end to succeed.

Issue

Whether the Application that sought to stay the Judgement of the Court of Appeal setting aside the decision of the High Court declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or

vice versa

; and insofar as it related to the role of Subordinate Courts with regard to environment and land, had merit.

Held

The Court had authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal. In the circumstances, the Court would expect an appeal on a significant question, and would endeavour to determine it appropriately.

The grounds that precious judicial time would have been lost, and costly legal services would have to be engaged, in the event the Court were to allow the forthcoming appeal were not compelling grounds rendering an appeal nugatory – especially as the appeal cause remained only conjectural.

The Applicant had not yet filed a substantive appeal before the Court, since filing the notice of appeal on October 30, 2017. Under section 33 (1) of the Supreme Court Rules, 2012 an appeal should be lodged within 30 days of the date of filing the notice on appeal – more than 7 months had expired since the filing of notice – and with no application seeking extension of time.

Grant of Stay of existing orders could not be a matter of course. It rested upon genuine conditions of urgency, merit and dispatch – which were missing in the instance. Hence there was no valid basis for the grant of stay orders.

Application dismissed

Orders

There were no Orders of stay against the Judgment of the Appellate Court.

No order as to costs;

Cases

East Africa

1.

Board of Governors, Moi High School, Kabarak & another v Malcolm Bell

Applications Nos 12 & 13 of 2012 (Consolidated) – (Followed)

Statutes

East Africa

Constitution of Kenya, 2010 article 2(1) (3); 4; 162 (2); 163 (4) (a) (7) – (Interpreted)

Environmental and Land Court Act,2011 (Act No 19 of 2011) sections 7(3); 8(d); 26(3), (4)-(Interpreted)

High Court (Organization and Administration) Act, 2015 (Act No 27 of 2015) – In general (Interpreted)

Magistrates’ Courts Act,2015 (Act No 26 of 2015) section 9(a), (b)-(Interpreted)

Statute Law (Miscellaneous Amendments) Act, 2017 (Act No 11 of 2017) section 2 –(Interpreted)

Supreme Court Act, 2011 (Act No 7 of 2011) sections 15(2), 21(1), (2); 24(1) –(Interpreted)

Supreme Court Rules, 2012, (Act No 7 of 2011 Sub Leg) rules 23, 26 –(Interpreted)

Advocates

None Mentioned

Extract:

Cases

East Africa

1.

Board of Governors, Moi High School, Kabarak & another v Malcolm Bell

Applications Nos 12 & 13 of 2012 (Consolidated) – (Followed)

Statutes

East Africa

Constitution of Kenya, 2010 article 2(1) (3); 4; 162 (2); 163 (4) (a) (7) – (Interpreted)

Environmental and Land Court Act,2011 (Act No 19 of 2011) sections 7(3); 8(d); 26(3), (4)-(Interpreted)

High Court (Organization and Administration) Act, 2015 (Act No 27 of 2015) – In general (Interpreted)

Magistrates’ Courts Act,2015 (Act No 26 of 2015) section 9(a), (b)-(Interpreted)

Statute Law (Miscellaneous Amendments) Act, 2017 (Act No 11 of 2017) section 2 –(Interpreted)

Supreme Court Act, 2011 (Act No 7 of 2011) sections 15(2), 21(1), (2); 24(1) –(Interpreted)

Supreme Court Rules, 2012, (Act No 7 of 2011 Sub Leg) rules 23, 26 –(Interpreted)

Advocates

None Mentioned

History County:

Nairobi

Case Outcome:

Order of stay granted

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga, CJ & P; Mwilu, DCJ & VP; Ibrahim, Ojwang & Njoki, SCJJ)

CIVIL APPLICATION NO. 20 OF 2017

–BETWEEN–

MALINDI LAW SOCIET...........................................................................APPLICANT

–AND–

1. THE LAW SOCIETY OF KENYA,

NAIROBI BRANCH

2. THE HON. ATTORNEY-GENERAL

3. THE CHIEF JUSTICE & PRESIDENT OF THE

SUPREME COURT OF KENYA

4. THE NATIONAL ASSEMBLY

5. THE LAW SOCIETY OF KENYA

6. THE NATIONAL LAND COMMISSION

.............................................RESPONDENTS

(Being an Application for stay of execution of the Court of Appeal decision (Waki, Nambuye, Musinga, Kairu and Murgor, JJ.A,) in Civil Appeal No. 287 of 2016 as consol

idated with Civil Appeal No. 3 of 2017 – dated 19 October 2017)

RULING OF THE COURT

[1] THE APPLICANT moved this Court by Notice of Motion under certificate of urgency, seeking Orders as follows:

(a) Pending the hearing and determination of the application, execution of the Judgment/Orders of the Appellate Court in Civil Appeal No. 287 of 2016 as consolidated with Civil Appeal No. 3 of 2017, be stayed;

(b) Pending the hearing and determination of the intended appeal against the said Judgment, its execution be stayed;

(c) Costs of the instant application do abide the conclusion of the intended appeal.

[2] THE QUESTION of certificate of urgency came up, on 31 October 2017, before

Ojwang, SCJ

who declined to grant the same, directing that a hearing date for the application be set in normal Registry operations.

[3] THE MATTER arises from the decision of a three-Judge Bench of the High Court, in Malindi Petition No. 3 of 2016, which held to be unconstitutional certain sections of the Environmental and Land Court Act, and the Magistrates’ Courts Act. In the background to the High Court decision was the enactment of the Statute Law (Miscellaneous Amendments) Act, 2015, the Magistrates’ Courts Act, and the High Court (Organization and Administration) Act, 2015 – entering into force on 2 January 2016. By the enactments, Parliament had amended the Environment and Land Court Act, conferring upon the Chief Justice the power to transfer Judges from proceedings of specialized Courts to those of the High Court, and

vice versa

– apart from clothing Magistrates’ Courts with authority to hear and determine disputes relating to employment and labour relations, the environment, and title to, and occupation of land.

[4] THE GRAVAMEN of the applicant’s cause is: Does it fall within Parliament’s competence to enact legislation bringing under the jurisdiction of Magistrates the determination of disputes relating to labour relations; the environment; land title and land use? Or is the jurisdiction in respect of such issues reserved to the specialized Courts, under Article 162 (2) of the Constitution?

[5] THE HIGH COURT had declared unconstitutional Section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or

vice versa

; and insofar as it related to the role of Subordinate Courts with regard to environment and land. The High Court held Sections 7(3), 8(d) and 26(3), (4) of the Environment and Land Courts Act, and Section 9(a), (b) of the Magistrate’s Courts Act, 2015 to be unconstitutional.

[6] THE SAID DECISIONS occasioned the lodgement by the Law Society of Kenya, Nairobi Branch of Civil Appeal No. 287 of 2016, while the Attorney-General filed Civil Appeal No. 3 of 2017 – which appeals were consolidated and determined by the Court of Appeal.

[7] THE APPELLATE COURT set aside the High Court Judgment on 19 October 2017; and the aggrieved applicant then filed a notice of appeal in the Supreme Court (dated 30 October 2017), followed by an application before this Court on 31

st

October 2017, under Articles 2(1), (3), 4 and 163 (4) (a) and (7), of the Constitution; Sections 15(2), 21(1), (2) and 24(1) of the Supreme Court Act, 2011 (Act No. 7 of 2011), as well as Rules 23 and 26 of the Supreme Court Rules, 2012, seeking Orders as set out hereinabove.

[8] THE AFFIDAVIT of Lucy Mwangi, an Advocate, avers that the intended appeal is arguable, and would be rendered nugatory if it were in the end to succeed, and that it is meet that the Orders sought be granted.

[9] THE DEPONENT avers that the public interest would favour grant of stay Orders, as the respondents stand to suffer no prejudice thereby.

[10] THIS COURT, at this stage, notes that it indeed has authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal:

Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell,

Supreme Court Applications Nos. 12, 13 (2012).

[11] THIS COURT, in the circumstances, would expect an appeal on a significant question, and would endeavour to determine it appropriately. But, would the terms of the findings of appeal be rendered nugatory – so that it becomes proper to issue the Orders sought at this stage? It is the applicant’s case that, precious judicial time will have been lost, and costly legal services will have to be engaged, in the event this Court were to allow the forthcoming appeal. These, in our perception, are not compelling ground rendering an appeal nugatory – especially as the appeal cause, so far, remains only conjectural.

[12] WE TAKE NOTE that the applicant has not yet filed a substantive appeal before this Court, since filing the notice of appeal on 30 October, 2017. By Section 33 (1) of the Supreme Court Rules, 2012 an appeal should be lodged within 30 days of the date of filing the notice on appeal – i.e., more than 7 months have expired since the filing of notice – and with no application seeking extension of time.

[13] GRANT OF STAY of existing Orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch – which are missing in this instance. Hence there is no valid basis for the grant of stay orders.

[14] We make Orders as follows:

(a) There shall be no Orders of stay against the Judgment of the Appellate Court.

(b) There shall be no Order as to costs;

DATED

and

DELIVERED

at

NAIROBI

this

19

th

day of

September, 2018.

…..………..…………………. ….……………………………

D. K. MARAGA P. M. MWILU

CHIEF JUSTICE & PRESIDENT DEPUTY CHIEF JUSTICE &

OF THE SUPREME COURT VICE-PRESIDENT OF THE SUPREME COURT

………………..…………… ...........……………………..…..

M. K. IBRAHIM J.B. OJWANG

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

………………….…………………………………...

S. N. NDUNG’U

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

SUPREME COURT OF KENYA.