Al Ghurair Printing And Publishing Llc v Coalition For Reforms And Democracy & 2 others (Civil Appeal 63 of 2017) (26 April 2017) (Judgment) (with dissent - SG Kairu, JA) [2017] KECA 565 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a government contract signed when the IEBC lacked commissioners was void, and no public interest excuse can save it.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court over the judicial review application filed outside the 14-day period in section 175 of the PPAD Act
The High Court had jurisdiction. The 1st respondent was challenging the IEBC's tender award, not merely the Review Board's decision, and some of the grounds raised were outside the Board's jurisdiction; only the High Court could determine them.
The court reasoned that jurisdiction flows from the Constitution or statute and that ouster clauses are construed strictly so as to preserve the court's ordinary jurisdiction. Because the Review Board itself acknowledged that complaints founded on the Elections Act and the ELAA were outside its mandate, and because the orders sought were directed at the IEBC's award, the application was not a challenge to the Board's decision within section 175. The 14-day limitation therefore did not bar the suit.
Whether the IEBC was properly constituted when the tender was awarded and the contract executed
The Commission was not properly constituted on 30th November 2016; the contract was void in law and the secretary acted ultra vires, so the decision to award the tender was properly quashed.
The President had, by Gazette Notice, declared the offices of the Chairperson and members vacant after their resignations. The court held that a person whose office is declared vacant cannot remain in office until replaced absent an enabling transition provision, and drew a distinction between a mere vacancy in membership and the total absence of members. The secretariat, which implements Commission policy, cannot lawfully function in the absence of the Chairperson and Commissioners, so the award of the tender by the accounting officer was ultra vires.
Whether the Election Laws (Amendment) Act, 2016 applied retrospectively to the tender
The ELAA was prima facie prospective and did not apply retrospectively, but the award of the tender, made after the Act commenced, had to take into account the new legislative framework.
The tender closed a month before the ELAA commenced, so the advertisement was governed by the old law. However, the award and contract were executed after commencement. The court understood the trial judge not to have applied the ELAA retrospectively but only to have held that proceeding with the contract in light of the new legal development was unreasonable, especially as regards poll registers and technology. Because the contract was on an 'as and when required' basis, the IEBC could simply specify compliant materials at the time of ordering.
Whether public interest militated against the grant of the judicial review orders
Public interest did not militate against the orders; contravention of the Constitution or a statute cannot be justified on the plea of public interest.
The court endorsed the trial judge's reliance on the principle that there can never be public interest in breach of the law, since the rule of law is a national value under Article 10. Determinations under Article 165(3)(d) on whether anything done under the Constitution or any law is inconsistent with the Constitution must be undertaken with fidelity to constitutional values and principles. Public interest can never override constitutionalism.
Legal principles established
#- Once a holder of a constitutional office resigns and the office is declared vacant, the officer cannot lawfully remain in office and continue to discharge official functions until replaced, unless the law expressly so permits; the secretariat cannot legally function in the absence of the Commissioners.
- Public interest can never be a justification for contravention of the Constitution or a statute.
- Non-criminal statutes are prima facie prospective and retrospective effect is not given unless by express words or necessary implication.
- Ouster-of-jurisdiction provisions must be construed strictly so as to preserve the ordinary jurisdiction of the court.
Court orders
#- 1.The appeal is hereby dismissed
- 2.Each party shall bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi, Judicial Review Division
- Miscellaneous Application No. 637 of 2016
- Jurisdiction invoked
- Appeal to the Court of Appeal against a High Court judicial review decision, as contemplated under section 175 of the Public Procurement and Asset Disposal Act, 2015 and Article 164 of the Constitution; supervisory jurisdiction of the High Court founded on Article 165(6) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Al Ghurair Printing And Publishing Llc v Coalition For Reforms And Democracy & 2 others (Civil Appeal 63 of 2017) (26 April 2017) (Judgment) (with dissent - SG Kairu, JA) [2017] KECA 565 (KLR)", Case Analysis (2017). Civil Appeal No 63 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/565/eng@2017-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.