Tunoi & another v Judicial Service Commission & 3 others (Civil Appeal 163 of 2015) [2015] KECA 311 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed three judges' challenge over alleged improper influence on the Chief Justice, ruling they failed to produce the evidence they complained about.
What this practically means
#Executive summary
#Key legal issues
#Effect of the concession on the consolidation order
Once the 1st and 2nd respondents conceded the appeal on the consolidation order, the two petitions were to be separated and heard separately and nothing remained for determination in the appeal
The court recorded that the only live controversy had been the High Court's order consolidating Petition Nos. 244 and 495 of 2014. With the 1st and 2nd respondents conceding that ground, and counsel for the appellants seeking to allow grounds 1 to 4 by consent, the court held there was nothing left to agitate. Justice Njagi having filed no cross-appeal, his counsel's objection to the concession was dismissed.
Alleged unconstitutional influence of the Ongeri Bench Memo on the Chief Justice's directions
The complaint failed because the Bench Memo was never placed before the High Court judges nor before the Court of Appeal, and the appellants never sought to obtain it despite an easy remedy
The court found no reference to the Bench Memo in the proceedings before the 5-judge bench. Sections 59 and 60 of the Evidence Act on judicial notice were invoked, and the court took judicial notice that Hon. Ongeri was a Deputy Registrar performing ministerial acts under Order 49 Rule 1 of the Civil Procedure Rules. The appellants bore the evidentiary burden of producing the memo to establish any impropriety, which they failed to do.
Whether a Deputy Registrar's memo could vitiate the Chief Justice's directions
No: registrars routinely perform ministerial acts on behalf of the court, and it was implausible that a Chief Justice would be directed by a Registrar
Relying on Order 49 of the Civil Procedure Rules and the definition of a ministerial act in Black's Law Dictionary, the court held that the Bench Memo was consistent with an innocent administrative transmittal of Odunga J's certification order to the Chief Justice for empanelling a bench. Article 159's command against undue regard to procedural technicalities and the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act supported disposing of the appeal on substance.
Legal principles established
#- A party alleging that a decision was influenced by an improper extrinsic document bears an evidentiary burden to obtain and place that document before the court; an adverse inference cannot be drawn from a document not in evidence
- Registrars of the superior courts lawfully perform ministerial and administrative acts on behalf of the courts, and courts take judicial notice of this practice
- Where respondents concede an appeal on a ground and no cross-appeal is filed, the concession binds all parties including a co-appellant who did not cross-appeal
Court orders
#- 1.Mr. Mwenesi's objection to the concession of the appeal by the 1st and 2nd respondents is dismissed
- 2.The appeal is dismissed
- 3.Each party shall meet their own costs of the appeal
- 4.The petitions in the High Court to open for hearing which should be expedited
- On appeal from
- High Court of Kenya, Judicial Review and Constitutional and Human Rights Division
- Petition No. 244 of 2014 (and Petition No. 495 of 2014)
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Sections 3A and 3B invoked); appeal against ruling and orders of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tunoi & another v Judicial Service Commission & 3 others (Civil Appeal 163 of 2015) [2015] KECA 311 (KLR)", Case Analysis (2015). Court of Appeal Petition No. 34 of 2015 (as per memorandum of appeal from High Court Petition Nos. 244 and 495 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/311/eng@2015-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.