Center for Rights Education and Awareness & 2 others v Mwau & 9 others; Ghai & another (Amicus Curiae) (Civil Appeal 74 & 82 of 2012 (Consolidated)) [2012] KECA 249 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the first election under the 2010 Constitution would be held by early March 2013, after Parliament's term expired.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants in Civil Appeal No. 74 of 2012, who were not parties to the High Court petitions, have locus standi to lodge an appeal
- 2.Whether the High Court erred in Order 2(a) that the first elections could be held in 2012 upon dissolution of the National Coalition by written agreement between the President and the Prime Minister
- 3.Whether the first general elections under the Constitution of Kenya 2010 should be held on the second Tuesday of August 2012, in late 2012, or within sixty days after the expiry of the term of the 10th Parliament on 14 January 2013
- 4.Who should bear the costs of the appeals
Key legal issues
#Locus standi of non-parties to appeal a constitutional petition decision
The appellants in Civil Appeal No. 74 of 2012 had no locus standi to appeal as they were not parties, their rights were not directly affected, and the October 2012 date they urged was never raised or adjudicated in the High Court; their submissions were heard only de bene esse.
The Court distinguished Pattni and Commercial Bank of Africa, where non-parties allowed to appeal had proprietary or financial interests. In public law constitutional litigation under Article 258, the right to 'institute court proceedings' refers to courts of first instance, not appellate courts. An open-door appeal policy would prolong litigation and clog the courts. However, the majority declined to lay down a rigid rule, leaving each case to be considered on its merits (Okwengu, Rawal and Koome JJA), while Maraga JA would have struck the appeal out outright.
Validity of High Court Order 2(a) - elections in 2012 upon dissolution of the Coalition
Order 2(a) was set aside. The High Court exceeded the limits of permissible judicial activism by amending Section 9(2) of the Sixth Schedule, Section 10 of the Schedule and Section 6(b) of the National Accord and Reconciliation Act to confer on the President and Prime Minister a power to trigger general elections which the Constitution did not confer.
All counsel agreed the order was made in error. The President's power under section 59 of the former Constitution to dissolve Parliament was not saved; the effect of Order 2(a) was to give the principals a dissolution power not conferred by the Constitution. Section 9(2) was spent by the date of the High Court judgment, and the construction produced an artificial, unworkable and impracticable result. Maraga JA found the High Court's first option 'clearly wrong and at any rate obiter'; Koome JA agreed it should be set aside.
Date of the first general election under the Constitution of Kenya 2010
The first general elections are governed by Sections 9(1) and 10 of the Sixth Schedule, not by Articles 101 and 102 which apply to successive future elections. The National Assembly serves its unexpired term expiring 14 January 2013, and the first elections fall within sixty days thereafter; the IEBC date of 4 March 2013 is lawful.
Article 101(1) fixes a permanent date for elections in every fifth year, while Section 9(1) addresses the first elections only. Section 2 of the Schedule suspends Chapters Seven and Eight except provisions on the system of elections, eligibility and electoral process, which apply to the first elections. The Committee of Experts' Final Report shows the incumbents were to complete their terms. The constitutional harmony principle and presumption against unworkable results support this reading. Koome JA dissented, holding dissolution should occur sixty days BEFORE the term expired.
Status of the Sixth Schedule and transitional provisions
The Sixth Schedule is an integral part of the Constitution with the same status as the other Articles, though of limited duration, and must be construed purposively under Article 259 and the harmonization principle.
Relying on Halsbury's functional construction rule, the Court held a schedule is fully part of the parent instrument. Unlike South Africa's Constitution, Kenya's has no specific equal-status provision, but Article 262 provides the transitional provisions take effect with the Constitution, and the Schedule was approved in the referendum. Transitional provisions must prevail over contradictory provisions meant for normal situations.
Legal principles established
#- A schedule to a constitution, like a schedule to an Act, is construed as fully part of that constitution; the Sixth Schedule has the same status as the other Articles although of limited duration
- Transitional provisions are drafted for a special situation and must prevail over an apparently contradictory provision intended for a normal situation; Articles 101 and 102 govern future general elections while Sections 9 and 10 of the Sixth Schedule govern the first elections
- A person who was not a party to High Court proceedings has no automatic right of appeal; the jurisdiction of an appellate court is to correct errors in matters adjudicated below, and new issues cannot be raised on appeal
- Under the Constitution of Kenya 2010 the President has no power to dissolve Parliament, section 59 of the former Constitution not having been saved; courts may not, under the guise of conforming statutes to the Constitution, usurp the legislative power
Court orders
#- 1.Prayer (a)(i) of Civil Appeal No. 74 of 2012 allowed to the extent that High Court Order 2(a) (elections in 2012 upon dissolution of the National Coalition under section 6(b) of the Accord) is set aside
- 2.Prayer (a)(ii) in Civil Appeal No. 74 of 2012 seeking to set aside the decision that elections be held within sixty days from 15th January 2013 is dismissed
- 3.Civil Appeal No. 82 of 2012 allowed to the extent that Order 2(a) is set aside
- 4.High Court Order 2(b) confirming that elections be held within sixty days of 15th January 2013 upon expiry of the 10th Parliament's term on 14th January 2013 is confirmed
- 5.No order as to costs of the consolidated appeals
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the lead judgment. Held the appellants in Civil Appeal No. 74 had no locus standi but considered the appeal de bene esse; set aside High Court Order 2(a) as exceeding permissible judicial activism; confirmed Order 2(b) that the first elections fall within sixty days after expiry of the 10th Parliament's term on 14 January 2013.
In the result, I would allow Civil Appeal No. 74 of 2012 to the extent that I would set aside the Order No. 2(a)p. 17
Wrote the judgment
Agreed Order 2(a) should be set aside and allowed CREAW limited participation de bene esse, but disagreed with Order 2(b): reading Sections 9 and 10 of the Sixth Schedule conjunctively with section 59(5) of the retired Constitution, dissolution of Parliament should have been sixty days BEFORE expiry of the five-year term (14 November 2012), with elections on or about 15 January 2013; would have substituted those orders.
I would allow the appeal and substitute the orders of the High Court with a definitive date for the dissolution of Parliament by 14th November, 2012, and the date for the next general elections as 15th January, 2013.p. 24
Wrote the judgment
Concurred with Githinji JA in entirety. Held Sections 9 and 10 of the Sixth Schedule were clear and unambiguous; Article 102(1) does not apply to the first general election as it is suspended by Section 2(1)(b); declined to lay a hard and fast rule barring non-parties from appealing but held the appellants had shown no interest above that of the parties.
I concur with the orders proposed by Githinji, JA.p. 26
Wrote the judgment
Concurred with the majority. Found CREAW lacked locus standi but urged preservation of the Court's discretion for exceptional cases; observed that adopting Koome JA's election-date formula would have adverse effects on many provisions of the Elections Act.
With those observations made, I concur with the orders proposed in the Judgment of Hon. Githinji, J.A which shall be the orders of this Court in this appeal.p. 28
Wrote the judgment
Would have struck out Civil Appeal No. 74 of 2012 as incompetent for lack of locus standi, holding the Court of Appeal has no original jurisdiction and 'directly affected' under Rule 77(1) requires a proprietary or substantially greater interest. Considering the merits de bene esse, he agreed Order 2(a) was wrong and obiter and confirmed the 2013 date within sixty days of 14 January 2013, upholding the IEBC date of 4 March 2013.
For these reasons, I would strike out Appeal No. 74 of 2011 with no order as to costs this being a public interest litigation.p. 33
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division
- Constitutional Petitions Nos. 65, 123 and 185 of 2011 (consolidated)
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution - appeals from the High Court
- Consolidated with
- Civil Appeal No. 82 of 2012
Relief refused
#Declaration that the first general elections be held on the second Tuesday of August 2012
Article 101(1) provides a permanent date for successive future elections; the first elections are governed by the transitional provisions in Sections 9 and 10 of the Sixth Schedule, under which the National Assembly completes its unexpired term
Full participation of CREAW and Caucus for Women's Leadership in the appeal
They were not parties to the High Court petitions, gave no reasons for their absence, and showed no interest greater than the general public; their submissions were heard only de bene esse
Costs in favour of any party
The matter was public interest litigation at an early stage of constitutional implementation; the court declined to lay down a general costs principle
Costs
No order as to costs; each party to bear its own costs of the consolidated appeals.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows therefore,and I hold, that the sixth schedule is an integral part of the current Constitution and has the same status as the provisions of the other Articles although it is of a limited duration.
The High Court exceeded the limits of permissible judicial adventurism or activism. The decision amounted to what Mr. Nowrojee labeled as “speculative jurisprudence”.
a transitional provision is par excellence a provision drafted for a special situation and must prevail over an apparent contradictory provision intended to cover a normal situation.
The jurisdiction of an appellate court is, in essence, to correct errors of law or fact made by the courts below.
It is not desirable to lay down a general principle governing costs in constitutional adjudication. The courts should be left free to exercise discretion on case to case basis.
Prayer (a)(i) of the Civil Appeal No. 74 of 2012 is allowed to the extent that Order 2(a) given by the High Court to the efiect that the first elections should be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the Accord is set aside.
The result of the decision of the majority is that the order No. 2(b) of the High Court that the elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by legal notice No. 1 of 2008 as 15th January, 2008 and the term therefore expired on 14th January, 2013 and the election shall be held within sixty days of 15th January, 2013 is confirmed.
Issues in the judgment
#Internal inconsistency in the dates of the High Court order: the quoted order is 'Given under my hand and seal of this Honorable Court this 12th day of January, 2012. Issued at Nairobi this 13th day of April, 2012', yet the judgment states the High Court delivered judgment on 13th January 2012 and reference is made to an 'order given on 12th March, 2012'.
Maraga JA refers to 'Appeal No. 74 of 2011' when striking out the appeal, though the appeal throughout is Civil Appeal No. 74 of 2012.
The lead judgment numbers two separate paragraphs as '45', and the computation of the term's expiry appears once as '14th January 2012' where 2013 is clearly meant.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (10)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Law Society of Kenya v Attorney General & 4 others[2023] KESC 19 (KLR)31 Mar 2023
- Law Society of Kenya v Attorney General & another[2019] KESC 16 (KLR)3 Dec 2019
- Nancy Mcnally v International Centre of Insect Physiology and Ecology; Attorney General (Interested Party) [2019] KEELRC 1791 (KLR)[2019] KEELRC 1791 (KLR)5 Apr 2019
- Silvanus Juma v Fred Musirimba & 2 others [2018] KEMC 41 (KLR)[2018] KEMC 41 (KLR)20 Feb 2018
- Mastermind Tobacco (K) Ltd v Commissioner of Domestic Taxes & 2 others [2017] KECA 232 (KLR)[2017] KECA 232 (KLR)6 Oct 2017followed
- Standard Limited & 2 others v Murungaru (Civil Appeal 187 of 2014) [2016] KECA 70 (KLR)[2016] KECA 70 (KLR)25 Nov 2016followed
- Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others[2014] KESC 9 (KLR)5 Nov 2014
- Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others[2014] KESC 53 (KLR)29 Sept 2014
- Kenya Anti-Corruption Commission v Kamani & 4 others (Civil Appeal 152 of 2009) [2014] KECA 719 (KLR)[2014] KECA 719 (KLR)14 Mar 2014applied
- Joho & another v Shahbal & 2 others (Civil Appeal 12 of 2013) [2013] KECA 435 (KLR)[2013] KECA 435 (KLR)25 Jul 2013applied
Cite this brief
#Cite this brief
Caselaw, "Center for Rights Education and Awareness & 2 others v Mwau & 9 others; Ghai & another (Amicus Curiae) (Civil Appeal 74 & 82 of 2012 (Consolidated)) [2012] KECA 249 (KLR)", Case Analysis (2012). Civil Appeal Nos. 74 and 82 of 2012 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/249/eng@2012-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.