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Court of AppealPartially AllowedCivil Appeal (from High Court consolidated Petition No. 552 of 2012, lead file)· [2019] KECA 182 (KLR)

Kenya Human Rights Commission & another v Attorney General & 6 others (Civil Appeal 147 of 2015) [2019] KECA 182 (KLR)

Court of Appeal
8 November 2019
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
7,477 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed presidential immunity is narrow and that public interest litigants who lose shouldn't be punished with costs.

What this practically means

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Executive summary

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The appellants, civil society organisations, challenged only the High Court's order condemning them to pay costs of a consolidated constitutional petition seeking declarations that the nomination of the 3rd and 4th respondents (facing ICC charges arising from the 2007 post-election violence) for President and Deputy President would violate the Constitution's leadership and integrity provisions. Before addressing costs, the Court dealt with a jurisdictional objection by the 3rd respondent, who had since become President, that Article 143(2) barred civil proceedings against him during his tenure. The Court held that the immunity under Article 143(2) is limited both temporally, to proceedings instituted during the President's term, and substantively, to acts done in exercise of presidential powers; conduct predating assumption of office is not covered. The authorities anchored on section 14(2) of the repealed Constitution, which granted absolute immunity, were distinguished. On costs, the Court noted that while costs generally follow the event under section 27 of the Civil Procedure Act, courts are slow to award costs in genuine public interest litigation because doing so deters such litigation. The trial court had itself found the petition to be public interest litigation yet failed to factor that into its discretion, and it wrongly reasoned that the appellants should pay costs because respondents had to defend several petitions when the record showed the appellants filed only one petition. That was a misdirection justifying appellate interference. The appeal succeeded on costs: the trial court's costs order was set aside and substituted with an order that each party bear its own costs in both the High Court and the Court of Appeal.

Key legal issues

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01

Scope of presidential immunity under Article 143(2) of the Constitution

Holding

Article 143(2) does not oust the Court's jurisdiction over an appeal concerning conduct predating assumption of the office of President; immunity is limited to acts done in exercise of presidential powers during tenure.

Reasoning

The Court compared Article 143(1) on criminal proceedings, which prohibits institution or continuance, with Article 143(2), which omits the words 'or continuing'. The contrast with section 14(2) of the repealed Constitution, which granted absolute immunity, shows the framers intended a narrower immunity. Applying the ordinary and purposive cannons of constitutional interpretation, acts alleged to have occurred after the 2007 General Election and before the 3rd respondent became President fell outside Article 143(2).

p. 14
02

Whether an appellate court should interfere with a trial court's costs discretion in public interest litigation

Holding

Yes. Where the trial court itself found the petition was public interest litigation but failed to take that into account, and wrongly based costs on the multiplicity of consolidated petitions, its discretion was exercised on a misdirection and will be interfered with.

Reasoning

Costs follow the event under section 27 of the Civil Procedure Act but remain discretionary. Public interest litigation under Articles 22(2) and 258 benefits the public, and condemning unsuccessful public interest litigants to pay costs deters such litigation. The record showed the appellants filed only one petition (Petition No. 579 of 2012), so the trial court's reasoning that respondents had to defend several petitions was factually mistaken as against the appellants.

p. 17

Legal principles established

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  • The President's civil immunity under Article 143(2) is limited to proceedings instituted during his or her term of office and to acts done or not done in exercise of presidential powers; it does not extend to acts or omissions giving rise to civil proceedings commenced before assumption of office.
  • In suits involving genuine public interest litigation, courts are slow to award costs, and finding that multiple consolidated petitions were defended is not, without more, a sound reason to condemn a public interest litigant to pay costs.

Court orders

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  1. 1.The order of costs made against the appellants and petitioners in the consolidated judgment of 15th February 2013 is set aside
  2. 2.Each party in Petitions Nos. 552 of 2012, 554 of 2012, 573 of 2012 and 579 of 2012 to bear its own costs in the High Court as well as in this Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 143(1)
  • Constitution of Kenya, 2010Article 143(2)
  • Constitution of Kenya, 2010Article 143(3)
  • Constitution of Kenya, 2010Article 143(4)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 22(2)
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Articles 73, 75 and Chapter Six
  • Constitution of Kenya, 2010Article 99(3)
  • Repealed Constitution of KenyaSection 14(2)
  • Civil Procedure Act (Cap 21)Section 27(1)
  • Court of Appeal RulesRule 82
  • Elections Act

Cases cited (16)

  • John Harun Mwau and Others vs The Attorney General and Others
    [2012] eKLR
  • Feisal Hassan vs Public Service Board of Marsabit County and Another
    [2016] eKLR
  • Jasbir Singh Rai and 3 others vs Tarlochan Singh Rai and 4 others
    [2014] eKLR
  • Republic vs The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua
    [2010] eKLR
  • Abacha vs Fawehinmi
    (1996) 6 NWLR (pt 660) 228
  • Tinubu vs IMB Securities PLC
    SC 32/2001
  • Abdul Karim Hassanally vs Westco Kenya Limited
    [2003] eKLR
  • Clinton vs Jones
    520 US 681 (1997)
  • Nixon vs Fitzgerald
    (1983)
  • The Owners of Motor Vessel "Lillian S" vs Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 others
    Application No. 2 of 2011 [2012] eKLR
  • Kigula & others vs Attorney General
    [2005] 1 E.A. 132
  • Cusack vs Harrow London Borough Council
    [2013] 4 ALL ER 97
  • Mbogo & Another vs Shah
    [1968] EA p.15
  • Supermarine Handling Services Ltd vs Kenya Revenue Authority
    Civil Appeal No. 85 of 2006
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others
    [2014] eKLR
On appeal from
High Court
Petition No. 552 of 2012 (consolidated with Petitions Nos. 554, 573 and 579 of 2012)
Jurisdiction invoked
Inherent appellate jurisdiction over costs orders; Article 143(2) of the Constitution considered as a challenge to jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kenya Human Rights Commission & another v Attorney General & 6 others (Civil Appeal 147 of 2015) [2019] KECA 182 (KLR)", Case Analysis (2019). Civil Appeal (from High Court consolidated Petition No. 552 of 2012, lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/182/eng@2019-11-08

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