Katiba Institute v Attorney General & 9 others (Civil Appeal 99 of 2019) [2020] KECA 513 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the appointments of three Judicial Service Commission commissioners, ruling that courts cannot second-guess Parliament's approval decisions if constitutional procedure was followed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of courts to review the merits or demerits of National Assembly decisions
Courts have jurisdiction under Article 165(3)(d)(ii) to check whether the National Assembly acted in accordance with the Constitution, but they may not sit on appeal over its decisions or substitute their own view for its decision. The High Court judge correctly appreciated these parameters.
Drawing on the jurisprudence of the High Court, Court of Appeal and Supreme Court on separation of powers, the court held that judicial intervention in the functions of other constitutional organs requires a high threshold and must aim at averting a real danger of constitutional violation. Since the appellant could not identify any procedural or constitutional safeguard violated by the National Assembly in vetting the 6th respondent, there was no basis for the court to interfere with the approval.
Constitutionality of section 15(2) of the Judicial Service Act, 2011
Section 15(2) is not unconstitutional. A statute cannot fetter or qualify what the Constitution has not restricted, and a provision that replicates constitutional requirements cannot be invalid.
The court applied the general interpretive principle that a law should be read consistently with the Constitution and declared void only where reconciliation is impossible. Since the Constitution imposes only the sex and non-lawyer requirements for Article 171(2)(h) nominees, the Judicial Service Act cannot be faulted for not importing diversity, merit and fair competition criteria that the Constitution itself did not attach. The appellants did not discharge the burden of proving unconstitutionality.
Whether Articles 10, 232 and 234 applied to the nominations and appointments
The values of fair competition and merit relevant to the 5th respondent's nomination under Article 171(2)(g) are internal to the Public Service Commission, which was best placed to determine which commissioner merited nomination; no public participation was required for that nomination.
The court reasoned that the members of the Public Service Commission themselves decided that the 5th respondent was qualified, and that courts and members of the public are not better placed to make that assessment. The fact that the nomination was made three days before the predecessor's term expired was immaterial and prejudicial to nobody, since the office was already vacant by the time of appointment.
Whether the 5th respondent's appointment required National Assembly vetting and approval
The High Court judge raised and determined this issue suo motu without the parties having pleaded or canvassed it, and the court therefore allowed the cross-appeal against that part of the judgment.
The record showed that the vetting of the 5th respondent by the National Assembly was never pleaded or argued before the trial court; the judge raised it himself and made a determination without hearing the parties. Although the finding did not appear to have prejudiced anyone, the Court of Appeal held that a judge who considers an unpleaded issue germane should first invite submissions. The cross-appeal was accordingly allowed.
Legal principles established
#- Courts reviewing decisions of the National Assembly (and other constitutional organs) must confine themselves to ensuring compliance with the Constitution and the law, and must not substitute their own decision or engage in merit review of a constitutionally mandated function performed with due regard to procedure
- The duty of a first appellate court is to analyse and evaluate the evidence on record afresh and reach its own independent decision, while making allowance for the trial court's advantage of seeing and hearing the witnesses
- Where a trial judge suo motu raises and determines an issue that was not pleaded or canvassed by the parties, he should first invite the parties to address him on it
- A statutory provision is not unconstitutional merely for replicating what the Constitution provides; the test is whether it blatantly contradicts the Constitution or cannot be reconciled with it
- For nominations to the Judicial Service Commission under Article 171(2)(h), the only requirements are the sex of the candidate and that the person is not a lawyer; no competitiveness or other merit criteria apply
Court orders
#- 1.The appeal is dismissed
- 2.The cross-appeal by the 3rd respondent (National Assembly) is allowed, thereby setting aside the High Court's declaration that there was no requirement for approval of the 5th respondent's nomination by the National Assembly and that such approval was of no legal effect
- 3.Each party to bear its own costs, the matter being a public interest matter
- On appeal from
- High Court of Kenya at Nairobi
- Petition dated 8th March, 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164 of the Constitution (appellate jurisdiction over the High Court); jurisdiction challenged by the 7th respondent by reference to Articles 164, 215 and 251
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katiba Institute v Attorney General & 9 others (Civil Appeal 99 of 2019) [2020] KECA 513 (KLR)", Case Analysis (2020). Court of Appeal Civil Appeal (Nairobi) - petition appealed from Nairobi High Court petition dated 8th March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/513/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.