Automated Summary
Key Facts
Hon. Mr. Justice Moijo Matayia Ole Keiwua, a Court of Appeal Judge, challenged the proceedings of a Constitutional Tribunal established under section 62 of the Kenya Constitution. The Tribunal investigated allegations of judicial misconduct, including claims he unlawfully influenced a civil case involving his company, Ol Kiombo Ltd. The High Court ruled that Stephen and Sylvester Ntutu's affidavits (non-parties) were inappropriately filed but not struck out, allowing a 10-day response period. The Court of Appeal granted a 30-day stay to file an appeal against the ruling, fearing the Tribunal's proceedings would lead to his removal as a Judge if allowed to proceed.
Issues
- The court considered whether non-parties, such as the Ntutu brothers, can file replying affidavits in a judicial review application without obtaining leave under Order 53 of the Civil Procedure Rules.
- The applicant challenged the constitutional validity of the Tribunal's proceedings, arguing they were outside the mandate established under Section 62 of the Constitution of Kenya and were vexatious.
- The court evaluated whether granting a stay of proceedings in the High Court application was necessary to prevent the applicant's intended appeal from being rendered nugatory if the Tribunal's proceedings continued.
Holdings
The Court of Appeal ruled that the applicant (Judge Moijo Matayia Ole Keiwua) has satisfied the requirement to demonstrate an arguable point regarding the interpretation of Civil Procedure Rules Order 53. It further determined that unless a stay is granted, his intended appeal would be rendered nugatory, as a finding against him in the disciplinary tribunal could lead to his removal as a Judge of Appeal. The court granted prayers (2), (3), and (4) of his motion, ordering a stay of proceedings in the High Court application pending the outcome of his appeal, provided he lodges the appeal within 30 days of this ruling. The orders will lapse if the appeal is not filed on time.
Remedies
- A mandamus was directed at the Hon. Chief Justice to observe the Constitution of Kenya in the letter and spirit, as well as the common law embodied therein relating to the rules of natural justice if there is a question as to the removal of the applicant as a Judge of Appeal.
- An order of prohibition was issued to stop the commencement or continuation of the inquiry into the applicant's conduct by the Constitutional Tribunal. The tribunal was prohibited from proceeding with any further investigations or actions in accordance with its terms of reference.
- The costs of this application are to be determined in the context of the intended appeal.
- The court granted a stay of further proceedings in High Court Miscellaneous Civil Application No. 1298 of 2004, pending the hearing and final determination of the intended appeal. The applicant was given 30 days to lodge the appeal; otherwise, the order would lapse.
Legal Principles
- The court addressed natural justice requirements, including the applicant's duty to serve all potentially affected parties and the tribunal's obligation to adhere to procedural fairness. The ruling noted that the applicant failed to serve the Ntutu brothers, who later filed affidavits, and emphasized that the tribunal must act impartially to avoid bad faith proceedings.
- The court applied judicial review principles to assess whether the Constitutional Tribunal's proceedings were unconstitutional, outside its mandate under section 62 of the Constitution, and whether the allegations against the applicant were vexatious. The ruling emphasized that the applicant must demonstrate the tribunal's actions were ultra vires or procedurally flawed to justify judicial intervention.
Precedent Name
- Bob Morgan Systems Ltd. & Another vs. Jones
- Jasbir Singh Rai and three others vs. Tarclochan Singh Rai and Four others
Cited Statute
- Civil Procedure Rules
- Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2001
- Constitution of Kenya
- Law Reform Act
Judge Name
- E.O. O'Kubasu
- P.K. Tunoi
- S.E.O. Bosire
Passage Text
- The court held that the right to reply to or file a further affidavit by an applicant must be exercised within a reasonable time after service of the replying affidavit; that it was the duty of the applicant and not the court, to identify persons who are or may be directly affected and duly serve them with his motion under Order 53 of the Civil Procedural Rules, and if the applicant does not do so the court is not obliged to assist him in that regard.
- We are satisfied that the applicant has satisfied the first duty. ... We think that unless we grant him the stay he seeks his intended appeal will be rendered nugatory. ... The applicant to lodge his appeal within 30 days of this ruling failing which this order will automatically lapse.
- The applicant, a Court of Appeal Judge, is a respondent in proceedings before a Tribunal established under section 62 of the Constitution of Kenya. The said Tribunal was established under Gazette Notice No. 8828 of 2003, by the President of the Republic of Kenya, with Hon. Mr. Justice (Rtd) Akilano Molade Akiwumi, (2nd respondent), as Chairman, and the Hon. Mr. Justice Benjamin Patrick Kubo (3rd respondent), Mr. Joe Okwach, Senior Counsel (4th respondent), Mr. Philip Nzamba Kitonga, Senior Counsel (5th respondent), and the Hon. Mr. Justice William Shirley Deverell (6th respondent) as members. Mr. Mbuthi Gathenji, (7th respondent) was appointed assisting counsel.