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Court of AppealAllowedCivil Appeal No. 9 of 2013· [2016] KECA 371 (KLR)

Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & 9 others (Civil Appeal 9 of 2013) [2016] KECA 371 (KLR)

Court of Appeal of Kenya
8 July 2016
6,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that any honest member of the public can challenge rights violations in court, even without a personal stake.

What this practically means

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Executive summary

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The appellants, described as former officials of the defunct Mombasa Republican Council (MRC), brought an originating notice of motion and an interlocutory motion in the High Court at Mombasa alleging constitutional violations and seeking, among other things, to restrain elections in the six coastal counties and the privatization of public assets including the Port of Mombasa, and to compel a referendum on coastal self-determination. A five-judge bench struck out both motions, holding that the appellants were acting on behalf of MRC, an unregistered body espousing an unconstitutional agenda, and that neither they nor MRC had locus standi or legal competency to bring the motions. The Court of Appeal (Ouko JA, writing for a unanimous bench of five) allowed the appeal on two broad grounds. First, it held that the strict common law standing rule, which required a personal and sufficient interest greater than that of the public, was overhauled by Articles 22, 258 and 260 of the Constitution of 2010; any member of the public who is not a busy-body or meddlesome interloper and who acts in good faith has standing, and the High Court erred in using the MRC draft constitution to deny the appellants access to justice despite their deposition that they no longer belonged to MRC. Secondly, while confirming that constitutional petitions are amenable to striking out, the Court stressed that the remedy is draconian and demands even greater caution where constitutional rights are alleged. The Court set aside the High Court's ruling and order of 20 December 2012 and made no orders as to costs.

Key legal issues

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01

Locus standi under the Constitution of Kenya, 2010

Holding

The narrow common law standing requirements of personal and sufficient interest were overhauled by Articles 22, 258 and 260; the High Court erred in denying the appellants standing by focusing on their association with the defunct and unregistered MRC, and they ought to have been heard on the merits of their grievance.

Reasoning

Articles 22 and 258 begin with the phrase 'Every person has the right to institute court proceedings' and permit actions in one's own interest, on behalf of others, as a member of or in the interest of a group or class, in the public interest, or by an association for its members. Article 260 defines 'person' broadly. Decisions like Alfred Njau, Maathai and El Bussaidy reflect the old order; Mumo Matemo confirms the enlarged standing. The learned Judges ignored the appellants' depositions that they were former MRC officials acting for coastal residents and used the MRC draft constitution to deny them access to justice.

p. 10
02

Power to strike out constitutional petitions

Holding

Contrary to the appellants' submission, the Gicheru Rules and the inherent jurisdiction of the court do permit striking out of constitutional petitions, and the Orderrule 2 principles of the Civil Procedure Rules apply by analogy; but the remedy is draconian and discretionary, and an appellate court will not interfere where exercised judicially.

Reasoning

The Gicheru Rules imposed timelines and contemplated striking out for frivolous or vexatious questions; the Mutunga Rules, made under Article 22(3), likewise empower the court to prevent abuse of process. However, striking out is a summary and draconian procedure reserved for plain cases, and where a petition alleges violation of constitutional rights the court must exercise even greater caution to avoid impeding access to justice. The exercise of discretion by the High Court here was improper.

p. 7

Legal principles established

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  • The strict common law rule of standing has been broadened by the Constitution of Kenya, 2010: any member of the public who is not a mere busy-body or meddlesome interloper and who acts in good faith has standing under Articles 22 and 258 to challenge violations of the Bill of Rights.
  • Constitutional petitions and applications are amenable to the court's inherent power to strike out, but striking out is a draconian remedy to be used only in plain cases, and with even greater caution where a constitutional rights petition is at stake.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of the High Court of 20th December 2012 set aside
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 (the Gicheru Rules)Rules 12, 15, 16, 24, 26, 27
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules)Rules 3(8), 4, 5(b)
  • Civil Procedure RulesOrder 2 Rules 11 and 15; Order 40 Rules 1 and 2
  • Societies ActSections 2, 4 and 9
  • Societies (Amendment) Rules, 2003Rule 2(d)
  • Transition to Devolved Government ActCAP 265A
  • Universal Declaration of Human Rights
  • United Nations Declaration of the Rights of Indigenous People

Cases cited (8)

  • Randu Nzai & 2 others v The Internal Security Minister and others, Mombasa High Court Misc. Application No. 468 of 2010
  • Randu Nzai and 2 others v Kenya Ports Authority and 5 others, Mombasa High Court Misc. Application No. 16 of 2011
  • Alfred Njau & 5 others v City Council of Nairobi
    (1982 - 88) 1 KAR 229
  • Maathai v Kenya Times Media Trust
    (1989) KLR 267
  • El Bussaidy v Commissioner of Land and others
    (2002) 1 KLR 508
  • Mumo Matemo v Trusted Society of Human Rights Alliance & 4 others, SC Civil Appl. No. 29 of 2014
  • Mumo Matemo v Trusted Society of Human Rights Alliance and another, Civil Appeal No. 290 of 2012
  • The Co-operative Merchant Bank Ltd v George Fredrick Wekesa, Civil Appeal No. 54 of 1999
On appeal from
High Court of Kenya at Mombasa
Constitutional Application No. 6 of 2012
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from a five-judge bench of the High Court (Constitutional Application No. 6 of 2012); the judgment does not expressly cite the appellate jurisdiction provision.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & 9 others (Civil Appeal 9 of 2013) [2016] KECA 371 (KLR)", Case Analysis (2016). Civil Appeal No. 9 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/371/eng@2016-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.