Okoiti & another v Waiguru, Cabinet Secretary for Devolution and Planning & 3 others (Civil Appeal 4 of 2015) [2017] KECA 679 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a devolution policy petition raised a major constitutional question, so it must be heard by three judges.
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' right to a fair hearing was violated
- 2.Whether the Judge erred in declining to certify that the appellants' petition raised a substantial point of law for purposes of Article 165(4) of the Constitution
Key legal issues
#Whether the appellants were denied a fair hearing when the application was heard before Nduma, J. in the absence of the 1st appellant
No fair-hearing violation. It is common practice for one judge to grant interim relief and another to hear the matter inter partes, and the 2nd appellant informed the court they were ready to proceed without seeking an adjournment.
The procedural history showed four judges handled the matter routinely. The 1st appellant gave notice of travel for about 30 days; on the hearing date the 2nd appellant, appearing for both, said they were ready to proceed and did not seek an adjournment. Nothing suggested the 2nd appellant was not speaking for the 1st, so the Judge could not be faulted for proceeding.
The principles governing certification of a matter as raising a substantial question of law under Article 165(4)
The Supreme Court of India test in Sir Chunilal V. Mehta provides a useful sieve; each case must be decided on its own facts, no factor alone is decisive, and principles drawn from Article 163(4)(b) certification jurisprudence apply with modification.
The court reviewed High Court decisions on Article 165(4), endorsed the Mehta test as a sieve to sift cases, and adapted the Supreme Court of Kenya's principles in Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone: the issue must transcend the particular case and bear on public interest; there must be uncertainty in the law; the matter must fall under Article 165(3)(b) or (d); and the applicant must identify the specific substantial questions.
Whether the appellants' petition raised a substantial question of law warranting a three-judge bench
Yes. Although it appeared to concern employment rights, the petition raised a fundamental constitutional interpretation question about the constitutionality of the human resource decentralization policy transcending the case and affecting the workings of the public service.
The court distinguished between apparent contractual employment claims and the underlying question of constitutional interpretation concerning the transfer of human resource control from Principal Secretaries to Cabinet Secretaries, which engages Articles 155(2), 232, 233, 234, 249 and 259(1). That question transcends the parties and has a significant bearing on the public interest, warranting certification.
Legal principles established
#- Whether a matter raises a substantial point of law under Article 165(4) of the Constitution must be determined on a case-by-case basis, adopting the Supreme Court of India test in Sir Chunilal V. Mehta, with no single factor being decisive; the categories of relevant factors are not closed.
- Certification under Article 165(4) is a matter of judicial discretion which must be exercised on a sound basis; a party seeking certification must lay a basis for it.
- Where a petition raises a fundamental constitutional interpretation question transcending the particular case, it is a proper case for certification under Article 165(4) and reference to the Chief Justice for empanelment of a bench.
Court orders
#- 1.The file in Petition No. 42 of 2014 as consolidated with Petition No. 27 of 2014 be placed before the Chief Justice for appointment of three Judges to hear and determine the Petitions
- 2.Each party shall bear its own costs of the application in the High Court and of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Constitutional Petition No. 42 of 2014
- Jurisdiction invoked
- Appeal from the Employment and Labour Relations Court under Article 165(4) of the Constitution of Kenya, 2010
Relief refused
#Overturning the ELRC ruling in full and a finding that the appellants were denied a fair hearing
The court found no merit in the fair-hearing complaint; the appeal was allowed only to the extent of ordering reference to the Chief Justice for empanelment of a three-judge bench
Costs
Each party shall bear its own costs of the application in the High Court and of this appeal.
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 is our judgment therefore, that whether a matter raises a substantial point of law for purposes of Article 165(4) of the Constitution is a matter for determination on a case-by-case basis. The categories of factors that should be taken into account in arriving at that decision cannot be closed.
For a case to be certified as one involving a substantial point of law, the intending applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest
We accordingly allow the appeal to the extent only that we order that the file in Petition No. 42 of 2014 as consolidated with Petition No. 27 of 2014 be placed before the Chief Justice for appointment of three Judges to hear and determine the Petitions.
Each party shall bear its own costs of the application in the High Court and of this appeal.
Issues in the judgment
#The quoted Supreme Court of India test appears garbled in the judgment text, with words seemingly displaced in the transcription.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Okoiti & another v Waiguru, Cabinet Secretary for Devolution and Planning & 3 others (Civil Appeal 4 of 2015) [2017] KECA 679 (KLR)", Case Analysis (2017). Civil Appeal No. 4 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/679/eng@2017-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.