Attorney General v Okiya Omtatah Okoiti & another [2019] KECA 774 (KLR)

The applicant contended that Okwany, J. capriciously refused to certify the petition as raising substantial questions of law warranting an enlarged bench, given that the challenge to the constitutionality of the Finance Act 2018 raised weighty interpretive questions. The Court applied the settled principle that an arguable appeal need not succeed but must not be frivolous. It held the intended appeal was not frivolous but expressly declined to comment further to avoid embarrassing the bench seized of the main appeal.

Relying on the principles in Multimedia University & Another v Professor Gitile N. Naituli and Stanley Kangethe Kinyanjui v Tony Ketter, and the public-interest consideration from the Supreme Court's decision in Gitirau Peter Munya v Dickson Mwenda Kithinji, the Court found that absent a stay the High Court petition would proceed to conclusion before a single judge, making the intended appeal on certification under Article 165(4) nugatory. Both twin principles were satisfied and a public-interest consideration reinforced the result.

The Constitution does not define 'a substantial question of law.' The Court referred to Chunilal Mehta v Century Spinning and Manufacturing Co., holding such a question is one of general public importance or one directly and substantially affecting the rights of the parties that is not finally settled, is not free from difficulty, or calls for discussion of alternative views. It also restated its earlier view in Okiya Omtatah Okoiti v Anne Waiguru that decisions of three or more judges carry more jurisprudential weight than single-judge decisions.