1. Before the Court for determination is a Notice of Motion dated 24th March 2025 brought by the Appellant under Articles 47(1), 50(1), 165(6) and (7) of the Constitution of Kenya 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 42 Rule 13 and Order 51 Rule 1 of the Civil Procedure Rules. The Appellant seeks the following orders:
1) That this Honourable Court be pleased to direct the Disciplinary Tribunal to provide the raw audio recordings of the hearing session conducted on 05th September 2022 in Disciplinary Tribunal Cause No. 161 of 2021;
2) That the costs of the application be provided for.
2. The application is premised on the grounds set out therein and is supported by an affidavit sworn by the Appellant on 24th March 2025. The Appellant avers that on 20th and 21st June 2023, he requested the Disciplinary Tribunal via email to furnish the audio recordings of the hearing conducted on 05th September 2022. Despite follow-ups, the Tribunal declined to provide the said recordings, citing confidentiality.
3. The Appellant contends that the members who heard the matter were not the same as those who rendered the decision, thereby violating his rights under Article 47(1) of the Constitution on fair administrative action. He further asserts that the typed proceedings do not accurately capture this discrepancy and that only the raw audio can clarify the composition of the coram and resolve the grievance set out underground 6 of his Memorandum of Appeal dated 12th June 2024.
4. According to the Appellant, the Tribunal’s failure to provide the original audio record has obstructed the preparation and prosecution of the appeal, necessitating the invocation of this Court’s supervisory jurisdiction under Article 165(6) and (7) of the Constitution. He maintains that the audio record forms part of the record contemplated under Order 42 Rule 13(4) of the Civil Procedure Rules and does not constitute new evidence or amended pleadings.
5. In response, the Respondent filed a Notice of Preliminary Objection dated 23rd April 2025 raising, inter alia, the following grounds:
1) That the application is incompetent as it seeks relief against a body (the Disciplinary Tribunal) that is not a party to the proceedings;
2) That pursuant to this Court’s ruling of 12th June 2024, the Appellant was granted specific timelines to refile the Memorandum and Record of Appeal, which he complied with, and final submissions were filed by both parties on 24th February 2025;
3) That there is no room for further pleadings or amendments at this stage and the application amounts to a fishing expedition;
4) That the application is frivolous, vexatious, and an abuse of the process of the court.
6. The Appellant filed submissions dated 14th May 2025 in which he urges the Court to dismiss the Preliminary Objection and allow the application, citing various constitutional and statutory provisions and judicial precedents in support of his position.
Issues for Determination
7. Upon review of the pleadings, affidavit evidence, Preliminary Objection, and submissions, the Court frames the following issues for determination:
1) Whether this Court has jurisdiction to issue directions to the Disciplinary Tribunal in the context of this appeal, and whether the present application is properly before the Court;
2) Whether the Appellant’s request for the audio recording is necessary for the fair determination of the appeal, or whether the issue it seeks to address is already apparent from the existing record;
3) Whether the application is frivolous, vexatious or an abuse of the court process, and whether any prejudice would be occasioned to the Respondent.
1) Jurisdiction and Propriety of the Application
8. The Appellant invokes the supervisory jurisdiction of the High Court under Article 165(6) and (7) of the Constitution. These provisions state:
Article 165(6):
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
Article 165(7):
“For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
9. The Appellant submits that the Disciplinary Tribunal is a quasi-judicial body falling within the supervisory reach of the High Court. He cites Sabina Moraa Swanya v Everly Kemunto Ontiri & another [2021] eKLR, where the Court held that:
“The Constitution has clothed the High Court with jurisdiction to supervise quasi-judicial tribunals and ensure that they operate within the law, and that their conduct meets the threshold of procedural fairness and legality.”
10. He also relies on Republic v Chief Magistrate’s Court at Milimani; Director of Public Prosecutions & 2 others (Ex parte Pravin Galot) [2020] KEHC 7529 (KLR), where the Court stated:
“This power of superintendence... is to be exercised most sparingly and only in appropriate cases... It involves a duty on the High Court to ensure that tribunals stay within the bounds of their legal mandate and observe minimum standards of procedural fairness.”
11. The Respondent’s argument that the application is incompetent for seeking orders against a non-party fails in light of the express language of Article 165(7), which empowers the Court to “call for the record” from any subordinate judicial or quasi-judicial body. The Tribunal need not be a party for this Court to exercise its supervisory function.
12. The Court is therefore satisfied that it has jurisdiction to call for the record from the Tribunal that rendered the impugned decision, notwithstanding that the Tribunal is not a party to these proceedings.
2) Necessity of the Audio Recording
13. The Appellant asserts that the members of the Tribunal who heard the complaint were not the same as those who signed the determination, and submits that the typed record does not disclose this inconsistency. On that basis, he seeks production of the raw audio recording of the hearing to verify the composition of the panel.
14. The Tribunal’s typed proceedings, as filed in the record of appeal, indicate that the complaint was heard by Maema William, Lumallas Eunice, and Muigai Esther M., while the determination is signed by Maema William (as Chairperson), and George Ochich, and Gathii Irungu as members. This composition is clearly reflected in the record. The issue raised is therefore already apparent on the face of the record and does not require the audio recording for its presentation or clarification.
15. The Appellant relied on Order 42 Rule 13(4)(d) of the Civil Procedure Rules, which includes "electronic recordings" as part of the record. While this provision is valid, its invocation presupposes that the requested record is necessary for fair appellate adjudication. Given that the same issue is already disclosed in the Tribunal’s written record, the request is redundant.
16. Even applying the standards governing the admission of additional evidence in appellate courts, as articulated by the Supreme Court in Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR), the request for the audio recording would not meet the applicable threshold. The relevant facts are already available on the face of the record and can be addressed in the ordinary course of the appeal. The material sought is therefore not essential for the just determination of the dispute.
3) Whether the application is frivolous, vexatious and abuse of the court process
17. An application may be deemed frivolous or an abuse of the court process where it discloses no reasonable cause, is based on false assumptions, or is filed for a collateral purpose. Abuse of process also arises where judicial procedures are used improperly to delay or overburden the Court or to prejudice another party.
18. In the present case, while the Appellant framed the application as raising a constitutional issue under Articles 47 and 50 of the Constitution, the relief sought, namely, the provision of the raw audio recording of the hearing, was premised on the claim that the composition of the Tribunal panel was uncertain or concealed. However, as already established, the composition of both the hearing and determining members is clearly set out in the typed proceedings and determination filed in the record of appeal.
19. In the circumstances, the Court finds that the Appellant ought to have known, upon perusal of the record, that the issues he raises are already fully captured in the record of appeal. Whereas the application does not appear to have been brought maliciously, it was nonetheless unnecessary and resulted in avoidable proceedings. A party cannot merely invoke constitutional rights in the abstract without first assessing the adequacy of the record available to them.
20. Although no demonstrable prejudice was occasioned to the Respondent in defending the application, the Respondent was nonetheless put to the expense of addressing a matter that was clearly disclosed on the face of the record. In the Court’s view, the Appellant must bear the consequences of failing to take reasonable care before invoking the Court’s jurisdiction
Disposition
19. For the reasons set out above, the Court makes the following orders:
1) The Appellant’s Notice of Motion dated 24th March 2025 is hereby dismissed;
2) The Appellant shall proceed to prosecute the appeal on the basis of the existing record, which already contains the material relating to the composition of the Tribunal during the hearing and determination;
3) The Appellant is condemned to pay the Respondent throw away costs of KES. 10,000 within 14 days from today’s date.
4) Mention on 25th June 2025 before Hon. Justice Kassan to take a judgment date
Appearances
Court Assistant - Ubah
For Appellant - Ms. Thuku for W.Thuku & Associates Advocates
For Respondent - Apollo for Apollo Mboya & Co. Advocates
1) That this Honourable Court be pleased to direct the Disciplinary Tribunal to provide the raw audio recordings of the hearing session conducted on 05th September 2022 in Disciplinary Tribunal Cause No. 161 of 2021;
2) That the costs of the application be provided for.
2. The application is premised on the grounds set out therein and is supported by an affidavit sworn by the Appellant on 24th March 2025. The Appellant avers that on 20th and 21st June 2023, he requested the Disciplinary Tribunal via email to furnish the audio recordings of the hearing conducted on 05th September 2022. Despite follow-ups, the Tribunal declined to provide the said recordings, citing confidentiality.
3. The Appellant contends that the members who heard the matter were not the same as those who rendered the decision, thereby violating his rights under Article 47(1) of the Constitution on fair administrative action. He further asserts that the typed proceedings do not accurately capture this discrepancy and that only the raw audio can clarify the composition of the coram and resolve the grievance set out underground 6 of his Memorandum of Appeal dated 12th June 2024.
4. According to the Appellant, the Tribunal’s failure to provide the original audio record has obstructed the preparation and prosecution of the appeal, necessitating the invocation of this Court’s supervisory jurisdiction under Article 165(6) and (7) of the Constitution. He maintains that the audio record forms part of the record contemplated under Order 42 Rule 13(4) of the Civil Procedure Rules and does not constitute new evidence or amended pleadings.
5. In response, the Respondent filed a Notice of Preliminary Objection dated 23rd April 2025 raising, inter alia, the following grounds:
1) That the application is incompetent as it seeks relief against a body (the Disciplinary Tribunal) that is not a party to the proceedings;
2) That pursuant to this Court’s ruling of 12th June 2024, the Appellant was granted specific timelines to refile the Memorandum and Record of Appeal, which he complied with, and final submissions were filed by both parties on 24th February 2025;
3) That there is no room for further pleadings or amendments at this stage and the application amounts to a fishing expedition;
4) That the application is frivolous, vexatious, and an abuse of the process of the court.
6. The Appellant filed submissions dated 14th May 2025 in which he urges the Court to dismiss the Preliminary Objection and allow the application, citing various constitutional and statutory provisions and judicial precedents in support of his position.
Issues for Determination
7. Upon review of the pleadings, affidavit evidence, Preliminary Objection, and submissions, the Court frames the following issues for determination:
1) Whether this Court has jurisdiction to issue directions to the Disciplinary Tribunal in the context of this appeal, and whether the present application is properly before the Court;
2) Whether the Appellant’s request for the audio recording is necessary for the fair determination of the appeal, or whether the issue it seeks to address is already apparent from the existing record;
3) Whether the application is frivolous, vexatious or an abuse of the court process, and whether any prejudice would be occasioned to the Respondent.
1) Jurisdiction and Propriety of the Application
8. The Appellant invokes the supervisory jurisdiction of the High Court under Article 165(6) and (7) of the Constitution. These provisions state:
Article 165(6):
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
Article 165(7):
“For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
9. The Appellant submits that the Disciplinary Tribunal is a quasi-judicial body falling within the supervisory reach of the High Court. He cites Sabina Moraa Swanya v Everly Kemunto Ontiri & another [2021] eKLR, where the Court held that:
“The Constitution has clothed the High Court with jurisdiction to supervise quasi-judicial tribunals and ensure that they operate within the law, and that their conduct meets the threshold of procedural fairness and legality.”
10. He also relies on Republic v Chief Magistrate’s Court at Milimani; Director of Public Prosecutions & 2 others (Ex parte Pravin Galot) [2020] KEHC 7529 (KLR), where the Court stated:
“This power of superintendence... is to be exercised most sparingly and only in appropriate cases... It involves a duty on the High Court to ensure that tribunals stay within the bounds of their legal mandate and observe minimum standards of procedural fairness.”
11. The Respondent’s argument that the application is incompetent for seeking orders against a non-party fails in light of the express language of Article 165(7), which empowers the Court to “call for the record” from any subordinate judicial or quasi-judicial body. The Tribunal need not be a party for this Court to exercise its supervisory function.
12. The Court is therefore satisfied that it has jurisdiction to call for the record from the Tribunal that rendered the impugned decision, notwithstanding that the Tribunal is not a party to these proceedings.
2) Necessity of the Audio Recording
13. The Appellant asserts that the members of the Tribunal who heard the complaint were not the same as those who signed the determination, and submits that the typed record does not disclose this inconsistency. On that basis, he seeks production of the raw audio recording of the hearing to verify the composition of the panel.
14. The Tribunal’s typed proceedings, as filed in the record of appeal, indicate that the complaint was heard by Maema William, Lumallas Eunice, and Muigai Esther M., while the determination is signed by Maema William (as Chairperson), and George Ochich, and Gathii Irungu as members. This composition is clearly reflected in the record. The issue raised is therefore already apparent on the face of the record and does not require the audio recording for its presentation or clarification.
15. The Appellant relied on Order 42 Rule 13(4)(d) of the Civil Procedure Rules, which includes "electronic recordings" as part of the record. While this provision is valid, its invocation presupposes that the requested record is necessary for fair appellate adjudication. Given that the same issue is already disclosed in the Tribunal’s written record, the request is redundant.
16. Even applying the standards governing the admission of additional evidence in appellate courts, as articulated by the Supreme Court in Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR), the request for the audio recording would not meet the applicable threshold. The relevant facts are already available on the face of the record and can be addressed in the ordinary course of the appeal. The material sought is therefore not essential for the just determination of the dispute.
3) Whether the application is frivolous, vexatious and abuse of the court process
17. An application may be deemed frivolous or an abuse of the court process where it discloses no reasonable cause, is based on false assumptions, or is filed for a collateral purpose. Abuse of process also arises where judicial procedures are used improperly to delay or overburden the Court or to prejudice another party.
18. In the present case, while the Appellant framed the application as raising a constitutional issue under Articles 47 and 50 of the Constitution, the relief sought, namely, the provision of the raw audio recording of the hearing, was premised on the claim that the composition of the Tribunal panel was uncertain or concealed. However, as already established, the composition of both the hearing and determining members is clearly set out in the typed proceedings and determination filed in the record of appeal.
19. In the circumstances, the Court finds that the Appellant ought to have known, upon perusal of the record, that the issues he raises are already fully captured in the record of appeal. Whereas the application does not appear to have been brought maliciously, it was nonetheless unnecessary and resulted in avoidable proceedings. A party cannot merely invoke constitutional rights in the abstract without first assessing the adequacy of the record available to them.
20. Although no demonstrable prejudice was occasioned to the Respondent in defending the application, the Respondent was nonetheless put to the expense of addressing a matter that was clearly disclosed on the face of the record. In the Court’s view, the Appellant must bear the consequences of failing to take reasonable care before invoking the Court’s jurisdiction
Disposition
19. For the reasons set out above, the Court makes the following orders:
1) The Appellant’s Notice of Motion dated 24th March 2025 is hereby dismissed;
2) The Appellant shall proceed to prosecute the appeal on the basis of the existing record, which already contains the material relating to the composition of the Tribunal during the hearing and determination;
3) The Appellant is condemned to pay the Respondent throw away costs of KES. 10,000 within 14 days from today’s date.
4) Mention on 25th June 2025 before Hon. Justice Kassan to take a judgment date
Appearances
Court Assistant - Ubah
For Appellant - Ms. Thuku for W.Thuku & Associates Advocates
For Respondent - Apollo for Apollo Mboya & Co. Advocates