Kenyan lawyers have moved to the East Africa Court of Justice (EACJ) complaining over the country’s Supreme Court decision to lock out persons and entities who are not parties to a case from lodging an appeal.
The Law Society of Kenya (LSK) claims its statutory obligation “to uphold the Constitution of Kenya and advance the rule of law and administration of justice” has been limited by the Supreme Court.
They are also aggrieved by the court’s decision to slap the society with costs incurred in a public interest case that was challenging a government’s decision to procure and install a Device Management System that “threatens the right to privacy of millions of Kenyan mobile subscribers”.
“The Supreme Court failed to uphold the rule of law by imposing a negative costs order on LSK in public interest litigation absent a finding of bad faith, ill will, misconduct, or frivolity by the LSK and in a manner that will discourage protection of human rights and good governance through public interest litigation,” said LSK lawyer Dudley Ochiel.
LSK says the Supreme Court judgment is an “outrageous judicial conduct” violating various provisions of the country’s Constitution and the long-running precedent that allow aggrieved non-parties to appeal in public interest litigation.
The move to the regional court was triggered by the April 21, 2023 decision of the five-Bench Supreme Court of Kenya in which the judges held that filing of appeals is limited to parties of a case not the non-parties.
‘A person’
The judges — Justices Philomena Mwilu (Deputy Chief Justice), Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and Isaac Lenaola — said the scope of who ‘a person’ is should mirror the jurisdiction of the Apex court.
“The definition of ‘a person’ seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this,” said the Supreme Court.
But LSK through lawyer Ochiel believe that the court failed to uphold the rule of law. They have sued the country’s Attorney-General over alleged violation of the law.
“The court disavowed itself of jurisdiction by holding that “a person” under Rule 36 meant a person aggrieved by a decision against him by the Court of Appeal,” said Mr Ochiel.
The decision of the court stemmed from a public interest case filed by Busia Senator Okiya Omtatah and Kenya Human Rights Commission in 2016 over installation of a device, Device Management System (DMS), procured by the Communication Authority of Kenya (CA) on mobile networks.
The High Court, allowing the Petition, stopped the installation of the DMS. CA appealed and the Court of Appeal allowed the installation.
None of the parties filed appeal to the Supreme Court. Mr Omtatah filed a cross-appeal in the LSK petition though.
LSK picked up the dispute and filed an appeal, which was dismissed by the Supreme Court in April 2023.
The court also slapped LSK with costs of the case.
“The LSK relied on the generous standing under Rule 36 of the Supreme Court Rules, 2020 under which “a person who intends to make an appeal to the Court shall file a notice of appeal within 14 days from the date of judgment or ruling which is the subject of appeal”. The rule provides wide locus for any party to institute an appeal before the Court,” said Mr Ochiel.
He explained that LSK also invoked the expanded locus standi under Article 22 and 258 of the Constitution allowing “any person” in Kenya to “institute court proceedings” under Articles 22 and 258 claiming a violation of the Bill of Rights or the Constitution of Kenya, 2010.
“Under both Articles, besides a person acting in their own interest, court proceedings may be instituted by a person acting on behalf of another person who cannot act in their own name or a person acting as a member of, or in the interest of, a group or class of persons; a person acting in the public interest; or an association acting in the interest of one or more of its members,” said Mr Ochiel.
He contended that the court unlawfully substituted the words “a person” in Articles 22 and 258 of the Constitution and Rule 36 of the Supreme Court with the words “a party who is aggrieved by a decision issued against him by the Court of Appeal”.
“Besides violating the law, the Supreme Court of Kenya decision procedurally and substantively obstructed LSK’s right of access to justice by curtailing LSK’s statutory mandate under section 4 of the Law Society of Kenya Act, 2014. Also, by denying the citizenry of Kenya the generous locus standi granted to them by the Constitution of Kenya, 2010,” he said.
He added that though LSK accepts that the attitude of courts within the EAC (or worldwide) on locus standi is not uniform and varies from state to state, court to court, and case to case, “no progressive interpretation of Kenya’s current Constitution and the Supreme Court Rules, 2020 can lead to the narrow version of locus standi taken by the Supreme Court of Kenya”.
LSK wants the regional court to declare that the Supreme Court of Kenya violated the EAC Treaty and the Kenyan Constitution.
It also wants an order of restitution restoring LSK’s right of access to justice and reverting the case on DMS for hearing on the merits.
