The case in point is Supreme Court of Kenya Petition Number 11 (E008) of 2022 Hon Mike Mbuvi Sonko v The Clerk County Assembly of Nairobi City & 11 others.
When it comes to matters jurisdiction, many legal practitioners will recite, perhaps with nursery rhyme fluency, the timeless words of Nyarangi JA in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR. In that case, Nyarangi JA famously stated that:
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
These words have, in a long line of decided cases, been the lamppost that has illuminated the courts’ path every time a question arises on jurisdiction. Perhaps to the reader untrained in legal vernacular, jurisdiction simply means the authority which a court has to decide matters that are litigated before it. It is also acceptable to say that jurisdiction is the authority of a court take cognizance of matters presented to it formally for its decision.
It is well known that Hon. Hon Mike Mbuvi Sonko (Hon. Sonko) was impeached as governor of Nairobi City County. Convinced that his impeachment was riddled with constitutional violations, Hon. Sonko went to court to sip from the wellsprings of justice.
Hon. Sonko’s complaint was processed through the professional competency of our courts. All the way from the High Court to the Supreme Court. In the end, the Supreme Court (also the apex Court or the Court) effectively upheld his impeachment.
Our keener interest is on the question of jurisdiction that took centre stage of the proceedings before the Supreme Court. Hon. Sonko was faulted for failing to invoke the jurisdiction of the apex Court properly.
Normally, appeals from the Court of Appeal lie to the apex Court pursuant to Articles 163 (4) (a) or 163 (4) (b) of the Constitution of Kenya, 2010. Under Article 163 (4) (a) the Supreme Court will hear appeals from the Court of Appeal as of right in any case involving the interpretation or application of the Constitution. Under Article 163 (4) (b), an appeal will lie to the Supreme Court in any case in which the Supreme Court or the Court of Appeal certifies the matter to be of general public importance (GPI).
In a legion of cases, the Supreme Court has taken that demarcation seriously. No appeal will lie to the Supreme Court unless brought within the compass of either of these jurisdictional limbs. The Supreme Court has warned that it cannot be its role to wander around in the maze of pleadings and averments to ascertain by way of elimination which of the two limbs of Article 163(4) a party intends to rely on. Incumbently, a party must identify which of the two limbs has been invoked. This, the Supreme Court has ruled paramount seeing as the applicable considerations and principles for each limbs are different.
Hon. Sonko’s petition before the Supreme Court was expressed to be brought pursuant to two repealed Rules, 9 and 33 of the Supreme Court Rules, 2012. These two rules essentially dealt with contents of a petition and institution of appeals. Rules 9 and 33 of the 2020 Rules, on the other hand relate to “Sealing of Court Documents” and “Application for Certification”, respectively. To the Supreme Court, these provisions could not be the basis for invoking the Court’s jurisdiction. At this stage, Hon. Sonko’s petition had its fate sealed.
The Supreme Court also found that Hon. Sonko’s petition as presented flouted yet another cardinal principle which the Court has shouted itself hoarse over the years.
See, there was no certification by the Supreme Court or the Court of Appeal under Article 163 (4) (b). Therefore, even it was to be assumed for a moment that Hon. Sonko’s petition was brought as of right under Article 163 (4) (a), it was imperative for Hon. Sonko to demonstrate precisely how the appeal involved application or interpretation of the Constitution and the manner in which the Court of Appeal erred in determining those questions.
The Supreme Court, again plentifully, has sounded the caution that parties must steer their appeals in the direction of constitutional interpretation and application. That parties should directly point to the specific instances where the Court of Appeal erred in its interpretation and application of the Constitution. It is not enough for one to generally plead without more that their case involves issues of Constitutional interpretation and application. Parties must be mindful that the appellate jurisdiction of the apex Court is specialized; it is not just another level of appeal.
With those shortcomings identified, Hon. Sonko’s petition could not unlock the Court’s jurisdiction. Therefore, as acknowledged by the Court, a strict application of the rule in Owners of the Motor Vessel “Lillian S”, the Court should have downed its tools at that point and strike out the petition without more.
However, the Court did not down its tools. The Court answered to a higher calling to determine the pertinent issues in the appeal on merit. The apex Court’s approach was inspired by the public interest in the matter, the broad interests of the parties, the need for due guidance to the judicial process and to the courts below, the need for posterity and development of jurisprudence.
The court reaffirmed that it occupies a special position in the hierarchy of courts. It reckoned that it has a constitutional obligation to develop jurisprudence and guide the courts below it on matters of general public interest, as well as on those involving the interpretation and application of the Constitution. This, the Court found will assist in removing any doubts and ambiguities in the law; mitigating hardships and correcting wrongs as opposed to avoiding them.
The Court reflected on several of its decision and returned that being the final court, it will, in appropriate cases rise to the occasion to resolve disputes that relate to its constitutional mandate as opposed to downing its tools. Even where it declines jurisdiction to entertain any particular questions, the Court may wish to achieve quality jurisprudence and also to resolve specific issues raised in the particular matter, in order to draw the whole dispute to a meaningful conclusion as well as to settle the law.
The Court was persuaded that in so doing, it did not herald a departure from Owners of the Motor Vessel “Lillian S”. The caution in Owners of the Motor Vessel “Lillian S”, according to the Court, holds good and retains validity. The court only extended horizon to cater for the [new] Supreme Court, with its specialized and wider jurisdiction than would have been contemplated at the time the decision in Owners of the Motor Vessel “Lillian S” was made. The Court however pointed out that the extended horizon would only avail to exceptional cases or situations.
The Court was also comforted by the observation that whether they downed their tools at that stage or not, the inevitable result was that the decision of the Court of Appeal stood upheld.
That said, the Court went ahead to consider the other grounds raised in Hon. Sonko’s appeal on the merits based on the applicable principles. Ultimately, the Court found the grounds of appeal to be lacking in merit. The Court affirmed that Hon. Sonko’s removal from office was in compliance with the Constitution and other applicable laws.
In his concurring opinion, Justice M.K Ibrahim SCJ, endorsed the approach by the majority. He opined that the context of the case presented an opportunity for the Court to settle fundamental questions of law surrounding impeachment proceedings in the framework of the Constitution of Kenya, 2010. That this was an opportunity for the Court to provide high-yielding interpretive guidance on the Constitution. The Court had an obligation and duty to seize. He was also minded to clarify that he did not endorse a departure from the principles in Owners of the Motor Vessel “Lillian S” decision. Rather, the case was a singular exemption for the Supreme Court due to its specialized mandate pursuant to the Constitution and the Supreme Court Act, 2012.
In their concurring opinion, Lady Justice Philomena Mwilu (DCJ & VP) and S.C. Wanjala, SCJ agreed with the majority that Hon. Sonko’s petition was rightly dismissed for lack of merit. They however observed on their part that having determined that Hon. Sonko did not invoke the Court’s jurisdiction properly, they would have struck out the appeal at that stage without more. The two judges deferred to the Court’s decision in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR In that case, when the Court found that its jurisdiction was not invoked properly, it downed its tools and struck out the petition without more.
Will the expanded horizon co-exist with the rule in Owners of the Motor Vessel “Lillian S” with time? The Court spent considerable ink explaining that it did not endorse a departure. As we always say here, you be the judge.
