1. The Application that is before this court for determination is the Notice of Motion dated 4th October 2024 wherein the Applicant is seeking the following Orders:
a) …spent.
b) The court be pleased to certify that this matter raises substantial questions of law warranting the constitution of a bench, of an odd number of not less than three judges, by the Chief Justice under Article 165(4) of the Constitution to hear and determine the application.
c) The matter be listed before the bench formed in (b) for further directions on consolidating this application with similar matters pending before this court.
The Applicant’s case:
2. It is the Applicant's case that this matter concerns the leasing of Jomo Kenyatta international Airport - JKIA, to the Adani conglomerate.
3. It argues that the subject transaction that forms the cause of action and the dispute herein is worth Kshs. 138 Billion and that the suit raises questions that significantly affect the public interest and Constitutional values.
4. The Applicant argues that there is another suit before the Constitutional Division of the High Court and that the issues raised in the suit have evoked consistent public debate, and triggered public and workers protests which issue is the subject of debate by both houses of Parliament that have conducted inquiries into the proposal. The Applicant argues that the subject proposal has raised substantial questions of law that are novel, significant and unsettled.
5. In advancing its case, the Applicant placed reliance in the case of Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education [2021] KEHC 1927(KLR) (citing the Court of Appeal in Okiya and Supreme Court in Hermanus); holding that:
i. The matter to be certified must fall within the terms of Article 165(3)(b) or (d) of the Constitution.
ii. The matter must raise substantial question(s) of law.
iii. The Applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest.
iv. The Applicant must show that there is a state of uncertainty in the law.
v. The Applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.
vi. The matter is of immense public importance and has unique significance in our constitutional democracy.
vii. Whether the matter is complex.
viii. Whether the matter raises novel points of law.
ix. Whether the matter by itself requires a substantial amount of time to be disposed of.
x. The effect of the prayers sought in the Petition.
6. Reliance is also placed in the case of Sammy Mwangangi & 10 others vs Commissioner of Lands & 3 others [2021] eKLR, this court held that for a matter to be certified, a party must demonstrate that such a point is a substantial one, the determination of which has a significant bearing on the public interest.
7. In the case of Kenya Anti-Corruption Commission v Deepak Chamanlal Kamani and 4 others [2014] eKLR, the court clarified that a matter of public interest involves the whole society and affects the legal rights or liabilities of the public at large.
8. It is the Applicants’ submission that the matter transcends the dispute between the parties before court and significantly affects the larger public.
9. The Applicant further submits that this dispute raises novel points of law, including the applicability of Articles 10, 201, and 227 to the Public Private Partnerships Act, 2021.
10. Further the suit points to the apparent conflict between the Public Private Partnership, on the one hand, and Article 227 and the Public Procurement and Asset Disposal Act, Cap 412C, on the other hand which is an issue that no court has previously determined any issues raised.
11. It is the Applicant's case that an expanded bench will allow the bench to debate the competing viewpoints toward an unimpeachable finding.
12. They submit that the matter falls under Article 165 (3)(c) and (d) of the Constitution, and the High Court has jurisdiction over the interpretation of the Constitution, including determining whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
13. The Applicant argues that from the choice of senior and ordinary counsel lined up, the number of fillings, the number of parties, and the nature of issues being raised this matter will require a substantial amount of time to dispose of. Indeed, already the court has to deal with interlocutory motions like consolidation with similar matters plus the preliminary jurisdictional contest by Adani and KAA.
14. KAA alone has filed a 1,500-page affidavit and has yet to file more. Equally, KHRC has filed 441 pages and has yet to submit a supplementary affidavit responding to KAA's recent filings. Parties still need to file submissions and bundles supporting those submissions. In those circumstances, a single judge would require substantial time to dispose of this matter.
The 1st Respondent’s case:
15. It is its case that the test to be met before the court can issue an Order of Certification under Article 165(3) is that the party seeking such orders must demonstrate, that a substantial question of law is involved in the matter, it is absolutely necessary and exceptional to certify the matter and have it heard by more than one Judge inter alia.
16. It is its case that the Applicant has failed to demonstrate that a substantial issue of law is raised in the matter to warrant certification as prayed in that the reasons given in support of the Application by the 1st Exparte Applicant are;
17. There is a plan to lease JKIA to Adani, an Indian conglomerate and its subsidiaries for 30 years under the Public Private Partnership Act.
18. The proceedings here challenge the leasing of JKIA a strategic and profitable national asset. The Dispute is worth Kshs. 138 Billion, raises issues that significantly affect the public interest and constitutional values.
19. The Court must consider the matter in totality including judicial resources and the effect in terms of delay in disposal of the matter. The Adani proposal has triggered other pending suits before the Constitutional Division, evoked consistent public debate and triggered public and worker protests.
20. Both houses of parliament have conducted proposals into the inquiry.
21. The matter raises a new point of law for the first time not settled by law of the land including an apparent conflict between the Public Private Partnership Act, Article 227 of the Constitution and the Public Procurement and Asset Disposal Act.
22. It is their case that the Applicant has not made any effort to prove the foregoing and the 1st Exparte Applicant has merely listed the grounds but not substantiated any of them nor made any reference to its substantive Notice of Motion to justify certification.
23. Reliance is placed in the Court of Appeal in Okiya Omtatah Okoiti & Another Vs Anne Waiguru, Cabinet Secretary Devolution and Planning and 3 Others (2017) eKLR as cited by the 1st Ex-Parte Applicant in which the Court set out the test to be met before a matter can be certified under Article 165(4) of the Constitution.
24. On the issue that the matter significantly affects public interest, the 1st Respondent submits that though it can be considered, it may be considered but that is not the decisive factor in determining an application for certification but depends on the circumstance of each case.
25. It is its case that there is no conflict in law since the Public Procurement and Asset Disposal - PPADA was enacted to provide procedures for efficient public procurement and disposal of assets by public entities in line with Article 227 of the Constitution. Further the PPADA provides for various procurement methods, procedures, contracts, disposal of assets, administrative review proceedings, offences and sanctions for breach of the Act.
26. It further submits that the PPP Act on the other hand provides for participation by the private sector in financing, construction, operation, development and or maintenance of infrastructure or development projects through public private partnerships to streamline the regulatory framework for such partnerships.
27. They submit that the PPP Act provides for the challenge of any decision of a contracting authority, the Public Private Partnership Committee and the Directorate of Public Private Partnerships under Section 75. The Privately Initiated Proposal (PIP) the subject of the proceedings herein is by the 5th Respondent pursuant to Section 40 of the PPP Act.
28. It submits that the issues raised by the Applicant and any dispute arising from the Publicly Initiated Proposal of the 5th Respondent, any decisions by the 1st Respondent as the contracting authority are to be resolved within the provisions of the PPP Act and the forum provided under Section 75 of the PPP Act and not the PPADA.
29. On another front, it submits that the fact that no superior court has previously determined the issues raised does not mean there is any uncertainty in law and particularly the application of the provisions of the PPP Act.
30. It is its submission that such an interpretation would mean that whenever there is a new statute then any matters arising therefrom are to be determined by more than one Judge which is not practical.
31. Reliance is placed in the case of County Government of Meru Vs Ethics and Anti-Corruption Commission (2014) eKLR as cited in the case of Okiya Omtatah and Others vs Anne Waiguru cited herein in which it was held that:
“Many provisions of our Constitution are untested and bring forth novel issues yet is not every day that we call upon the Chief Justice to empanel a bench of not less than three judges”
32. The Application for certification was filed on 4th October 2024 prior to the 1st Applicant filing its Replying Affidavit. The annexures to the Replying Affidavit the argument that this matter requires a substantial amount of time to dispose of, is misplaced.
33. It submits that preliminary issues including of jurisdiction, consolidations the issue of seniority of counsel appearing in the matter cannot be stated to be a reason for certification of the matter and is not a test laid out under the cited authorities.
34. It submits finally that the 1st Exparte Applicant in citing the case of Philomena Mbeta Mwilu Vs DPP and 4 Others (2018) eKLR has admitted that the Orders it is seeking are an issue of exercise of discretion by the Court.
The 2nd,3rd, 4th and 5th Respondents:
35. It is their case that the Exparte Applicant has not met the standards for certification under Article 165 (3)(b) or (d) of the Constitution that the case raises substantial questions of law as set by the Court of Appeal in Okiya Omtatah Okoiti & Another vs. Anne Waiguru, Cabinet Secretary, Devolution and Planning & 3 Others [2017] eKLR in particular, that:
i. The Applicant has failed to demonstrate that there is a state of uncertainty in the law;
ii. The Applicant has failed to identify and concisely set out the specific substantial question or questions of law which they attribute to the matter for which the certification is sought. There is no conflict between Article 227 of the constitution, the Public Procurement and Asset Disposal Act as well and the Public Private Partnership Act;
iii. This case does not fall within Article 165 (3)(b) or (d) of the Constitution. The Applicant has failed to demonstrate the manner in which the Respondents have violated its constitutional rights to support its case.
36. They heap blame on the Applicant for the unexplained delay in moving the court in that having regard to the fact that the suit was filed on 9th September 2024.The Respondents filed and served their responses on 17th September 2024.The application was only filed on 4th October 2024 and according to them, the suit is an abuse of the court process and an improper attempt to delay the hearing of the application for conservatory orders.
37. They argue that the prejudice that will be occasioned by the delay of the determination of the application for conservatory orders far outweighs the benefits of having 3 or more judges hear the matter.
38. It is further their case that it is not enough that the subject matter is of considerable value. A judge is a judge and the decision of one is as good as the decision of an odd number whether three or five.
Analysis and determination:
The issue for determination is whether the Application has merits or not.
39. Article 165 (4) of the Constitution provides as follows:
“Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.”
The Constitution does not define what constitutes “substantial question of law”. It is therefore upon the Court to determine what would amount to “a substantial question of law”.
40. In determining this Application, this court is guided by principles as enunciated in the case of Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education [2021] KEHC 1927(KLR) (citing the Court of Appeal in Okiya and Supreme Court in Hermanus); holding that:
i. The matter to be certified must fall within the terms of Article 165(3)(b) or (d) of the Constitution.
ii. The matter must raise substantial question(s) of law.
iii. The Applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest.
iv. The Applicant must show that there is a state of uncertainty in the law.
v. The Applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.
vi. The matter is of immense public importance and has unique significance in our constitutional democracy.
vii. Whether the matter is complex.
viii. Whether the matter raises novel points of law.
ix. Whether the matter by itself requires a substantial amount of time to be disposed of.
x. The effect of the prayers sought in the Petition.
41. In determining whether the suit affects the parties and whether it transcends the circumstances of the particular case and has a significant bearing on the public interest this court is satisfied that the suit has evoked consistent public debate, public outrage, and triggered public and workers protests and the issue is the subject of debate by both houses of Parliament. The matter is of immense public importance and has unique significance in our constitutional democracy under Article 10 of the Constitution.
42. This court is in agreement with the 1st Respondent’s submission that though the matter significantly affects public interest, this is not the decisive factor in determining an application for certification. It depends on the circumstance of each case. No doubt this resonates with the principles as enunciated in the case of Esther Awuor Adero Ang'awa (supra).
43. It is this court’s finding that there is a probability that this suit requires a substantial amount of time to be disposed of going by the volumes of pleadings and the annexures that parties have lodged in the Court tracking system.
44. The Applicant has identified the applicability of Articles 10, 201, and 227 to the Public Private Partnerships Act, 2021 and also raised the issue of the apparent conflict between the Public Private Partnership, on the one hand, and Article 227 and the Public Procurement and Asset Disposal Act, Cap 412C.
45. On their part, the Respondents held the view that on the alleged conflict between Article 227 of the Constitution, the Public Private Partnerships Act and the Public Procurement and Asset Disposal Act the Applicant failed to show how the two are in conflict.
46. The Respondents case is that there is no conflict in law since the PPADA was enacted to provide procedures for efficient public procurement and disposal of assets by public entities in line with Article 227 of the Constitution and further it is their case that The PPADA provides for various procurement methods, procedures, contracts, disposal of assets, administrative review proceedings, offences and sanctions for breach of the Act.
47. The Respondent further submitted that the PPP Act on the other hand provides for participation by the private sector in financing, construction, operation, development and or maintenance of infrastructure or development projects through public private partnerships to streamline the regulatory framework for such partnerships.
48. They submitted that the PPP Act provides under Section 75 for the challenge of any decision of a contracting authority, the Public Private Partnership Committee and the Directorate of Public Private Partnerships.
49. The Respondents argued that the Privately Initiated Proposal (PIP) the subject of the proceedings herein is by the 5th Respondent pursuant to Section 40 of the PPP Act and that the issues raised by the Ex-parte Applicants and any dispute arising from the Publicly Initiated Proposal of the 5th Respondent, any decisions by the 1st Respondent as the contracting authority are to be resolved within the provisions of the PPP Act and the forum provided under Section 75 of the PPP Act and not the PPADA.
50. Upon weighing the rival arguments and positions as advanced by the parties herein, this court is guided by the holding in the case of Esther Awuor Adero Ang'awa (supra) in finding that the Applicant has adequately identified and concisely set out the specific substantial question or questions of law which it attributes to the matter for which the certification is sought.
51. This court is not supposed to delve into the merits of the case once it is satisfied that that the Applicant has identified and concisely set out the specific substantial question or questions of law which it attributes to the matter for which the certification is sought and I so hold.
52. To delve deep into a merit analysis at this stage in trying to determine how the two sets of laws conflict would prematurely and unfairly compromise and prejudice the parties’ cases early in the day. This court has exercised restraint so as to remain within the principles as laid out in the Esther Awuor Adero Ang'awa (supra).
53. The fact that there are many advocates in a matter or that there is senior counsel in a suit cannot form the basis of certification of a matter. That argument by the Applicant carries no weight.
54. The argument that this application will delay the determination of all the preliminary issues and ultimately the main suit does not accord with the right to fair hearing as guaranteed under Article 47 and the right to access to justice as guaranteed under Article 48 of The Constitution. The Respondents have not demonstrated how the process of the empanelment of an uneven bench will delay the determination of this suit.
55. The argument by the 2,3,4 and 5th Respondents that the prejudice that will be occasioned by the delay of the determination of the application for conservatory orders far outweighs the benefits of having 3 or more judges hear the matter is baseless in the circumstances.
56. The effect of the prayers sought in the Petition is likely to have on the public, the Applicants and the Respondents cannot be down played. It is a relevant factor that has guided this court in arriving at a decision that the Applicant has made out a case for certification. This court is guided by the findings in the case of Martin Nyaga and Others v Speaker County Assembly of Embu and 4 Others and Amicus [2014] eKLR, the Court articulated that the principles applicable when making a declaration under Article 165(4) include:
a) whether the matter is complex;
b) whether the matter raises a novel point;
c) whether the matter by itself requires a substantial amount of time to be disposed of;
d) the effect of the prayers sought in the Petition and the level of public interest generated by the Petition.
57. Upon perusing the pleadings, the application, Affidavits and submissions as filed by the parties herein in the instant suit, it is this court’s view that the issues raised in the suit transcend the dispute between the parties before court and they significantly affect the larger public.
Disposition:
58. I am satisfied that the Applicant has made out a case for the certification for the empanelment of a bench of Judges by The Honorable Chief Justice.
Order:
1) This matter is hereby certified and referred to the Chief Justice forthwith for the Constitution of a bench in terms of Article 165 (4) of the Constitution.
2) Orders accordingly.
a) …spent.
b) The court be pleased to certify that this matter raises substantial questions of law warranting the constitution of a bench, of an odd number of not less than three judges, by the Chief Justice under Article 165(4) of the Constitution to hear and determine the application.
c) The matter be listed before the bench formed in (b) for further directions on consolidating this application with similar matters pending before this court.
The Applicant’s case:
2. It is the Applicant's case that this matter concerns the leasing of Jomo Kenyatta international Airport - JKIA, to the Adani conglomerate.
3. It argues that the subject transaction that forms the cause of action and the dispute herein is worth Kshs. 138 Billion and that the suit raises questions that significantly affect the public interest and Constitutional values.
4. The Applicant argues that there is another suit before the Constitutional Division of the High Court and that the issues raised in the suit have evoked consistent public debate, and triggered public and workers protests which issue is the subject of debate by both houses of Parliament that have conducted inquiries into the proposal. The Applicant argues that the subject proposal has raised substantial questions of law that are novel, significant and unsettled.
5. In advancing its case, the Applicant placed reliance in the case of Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education [2021] KEHC 1927(KLR) (citing the Court of Appeal in Okiya and Supreme Court in Hermanus); holding that:
i. The matter to be certified must fall within the terms of Article 165(3)(b) or (d) of the Constitution.
ii. The matter must raise substantial question(s) of law.
iii. The Applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest.
iv. The Applicant must show that there is a state of uncertainty in the law.
v. The Applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.
vi. The matter is of immense public importance and has unique significance in our constitutional democracy.
vii. Whether the matter is complex.
viii. Whether the matter raises novel points of law.
ix. Whether the matter by itself requires a substantial amount of time to be disposed of.
x. The effect of the prayers sought in the Petition.
6. Reliance is also placed in the case of Sammy Mwangangi & 10 others vs Commissioner of Lands & 3 others [2021] eKLR, this court held that for a matter to be certified, a party must demonstrate that such a point is a substantial one, the determination of which has a significant bearing on the public interest.
7. In the case of Kenya Anti-Corruption Commission v Deepak Chamanlal Kamani and 4 others [2014] eKLR, the court clarified that a matter of public interest involves the whole society and affects the legal rights or liabilities of the public at large.
8. It is the Applicants’ submission that the matter transcends the dispute between the parties before court and significantly affects the larger public.
9. The Applicant further submits that this dispute raises novel points of law, including the applicability of Articles 10, 201, and 227 to the Public Private Partnerships Act, 2021.
10. Further the suit points to the apparent conflict between the Public Private Partnership, on the one hand, and Article 227 and the Public Procurement and Asset Disposal Act, Cap 412C, on the other hand which is an issue that no court has previously determined any issues raised.
11. It is the Applicant's case that an expanded bench will allow the bench to debate the competing viewpoints toward an unimpeachable finding.
12. They submit that the matter falls under Article 165 (3)(c) and (d) of the Constitution, and the High Court has jurisdiction over the interpretation of the Constitution, including determining whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
13. The Applicant argues that from the choice of senior and ordinary counsel lined up, the number of fillings, the number of parties, and the nature of issues being raised this matter will require a substantial amount of time to dispose of. Indeed, already the court has to deal with interlocutory motions like consolidation with similar matters plus the preliminary jurisdictional contest by Adani and KAA.
14. KAA alone has filed a 1,500-page affidavit and has yet to file more. Equally, KHRC has filed 441 pages and has yet to submit a supplementary affidavit responding to KAA's recent filings. Parties still need to file submissions and bundles supporting those submissions. In those circumstances, a single judge would require substantial time to dispose of this matter.
The 1st Respondent’s case:
15. It is its case that the test to be met before the court can issue an Order of Certification under Article 165(3) is that the party seeking such orders must demonstrate, that a substantial question of law is involved in the matter, it is absolutely necessary and exceptional to certify the matter and have it heard by more than one Judge inter alia.
16. It is its case that the Applicant has failed to demonstrate that a substantial issue of law is raised in the matter to warrant certification as prayed in that the reasons given in support of the Application by the 1st Exparte Applicant are;
17. There is a plan to lease JKIA to Adani, an Indian conglomerate and its subsidiaries for 30 years under the Public Private Partnership Act.
18. The proceedings here challenge the leasing of JKIA a strategic and profitable national asset. The Dispute is worth Kshs. 138 Billion, raises issues that significantly affect the public interest and constitutional values.
19. The Court must consider the matter in totality including judicial resources and the effect in terms of delay in disposal of the matter. The Adani proposal has triggered other pending suits before the Constitutional Division, evoked consistent public debate and triggered public and worker protests.
20. Both houses of parliament have conducted proposals into the inquiry.
21. The matter raises a new point of law for the first time not settled by law of the land including an apparent conflict between the Public Private Partnership Act, Article 227 of the Constitution and the Public Procurement and Asset Disposal Act.
22. It is their case that the Applicant has not made any effort to prove the foregoing and the 1st Exparte Applicant has merely listed the grounds but not substantiated any of them nor made any reference to its substantive Notice of Motion to justify certification.
23. Reliance is placed in the Court of Appeal in Okiya Omtatah Okoiti & Another Vs Anne Waiguru, Cabinet Secretary Devolution and Planning and 3 Others (2017) eKLR as cited by the 1st Ex-Parte Applicant in which the Court set out the test to be met before a matter can be certified under Article 165(4) of the Constitution.
24. On the issue that the matter significantly affects public interest, the 1st Respondent submits that though it can be considered, it may be considered but that is not the decisive factor in determining an application for certification but depends on the circumstance of each case.
25. It is its case that there is no conflict in law since the Public Procurement and Asset Disposal - PPADA was enacted to provide procedures for efficient public procurement and disposal of assets by public entities in line with Article 227 of the Constitution. Further the PPADA provides for various procurement methods, procedures, contracts, disposal of assets, administrative review proceedings, offences and sanctions for breach of the Act.
26. It further submits that the PPP Act on the other hand provides for participation by the private sector in financing, construction, operation, development and or maintenance of infrastructure or development projects through public private partnerships to streamline the regulatory framework for such partnerships.
27. They submit that the PPP Act provides for the challenge of any decision of a contracting authority, the Public Private Partnership Committee and the Directorate of Public Private Partnerships under Section 75. The Privately Initiated Proposal (PIP) the subject of the proceedings herein is by the 5th Respondent pursuant to Section 40 of the PPP Act.
28. It submits that the issues raised by the Applicant and any dispute arising from the Publicly Initiated Proposal of the 5th Respondent, any decisions by the 1st Respondent as the contracting authority are to be resolved within the provisions of the PPP Act and the forum provided under Section 75 of the PPP Act and not the PPADA.
29. On another front, it submits that the fact that no superior court has previously determined the issues raised does not mean there is any uncertainty in law and particularly the application of the provisions of the PPP Act.
30. It is its submission that such an interpretation would mean that whenever there is a new statute then any matters arising therefrom are to be determined by more than one Judge which is not practical.
31. Reliance is placed in the case of County Government of Meru Vs Ethics and Anti-Corruption Commission (2014) eKLR as cited in the case of Okiya Omtatah and Others vs Anne Waiguru cited herein in which it was held that:
“Many provisions of our Constitution are untested and bring forth novel issues yet is not every day that we call upon the Chief Justice to empanel a bench of not less than three judges”
32. The Application for certification was filed on 4th October 2024 prior to the 1st Applicant filing its Replying Affidavit. The annexures to the Replying Affidavit the argument that this matter requires a substantial amount of time to dispose of, is misplaced.
33. It submits that preliminary issues including of jurisdiction, consolidations the issue of seniority of counsel appearing in the matter cannot be stated to be a reason for certification of the matter and is not a test laid out under the cited authorities.
34. It submits finally that the 1st Exparte Applicant in citing the case of Philomena Mbeta Mwilu Vs DPP and 4 Others (2018) eKLR has admitted that the Orders it is seeking are an issue of exercise of discretion by the Court.
The 2nd,3rd, 4th and 5th Respondents:
35. It is their case that the Exparte Applicant has not met the standards for certification under Article 165 (3)(b) or (d) of the Constitution that the case raises substantial questions of law as set by the Court of Appeal in Okiya Omtatah Okoiti & Another vs. Anne Waiguru, Cabinet Secretary, Devolution and Planning & 3 Others [2017] eKLR in particular, that:
i. The Applicant has failed to demonstrate that there is a state of uncertainty in the law;
ii. The Applicant has failed to identify and concisely set out the specific substantial question or questions of law which they attribute to the matter for which the certification is sought. There is no conflict between Article 227 of the constitution, the Public Procurement and Asset Disposal Act as well and the Public Private Partnership Act;
iii. This case does not fall within Article 165 (3)(b) or (d) of the Constitution. The Applicant has failed to demonstrate the manner in which the Respondents have violated its constitutional rights to support its case.
36. They heap blame on the Applicant for the unexplained delay in moving the court in that having regard to the fact that the suit was filed on 9th September 2024.The Respondents filed and served their responses on 17th September 2024.The application was only filed on 4th October 2024 and according to them, the suit is an abuse of the court process and an improper attempt to delay the hearing of the application for conservatory orders.
37. They argue that the prejudice that will be occasioned by the delay of the determination of the application for conservatory orders far outweighs the benefits of having 3 or more judges hear the matter.
38. It is further their case that it is not enough that the subject matter is of considerable value. A judge is a judge and the decision of one is as good as the decision of an odd number whether three or five.
Analysis and determination:
The issue for determination is whether the Application has merits or not.
39. Article 165 (4) of the Constitution provides as follows:
“Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.”
The Constitution does not define what constitutes “substantial question of law”. It is therefore upon the Court to determine what would amount to “a substantial question of law”.
40. In determining this Application, this court is guided by principles as enunciated in the case of Esther Awuor Adero Ang'awa v Cabinet Secretary Responsible for Matters Relating to Basic Education [2021] KEHC 1927(KLR) (citing the Court of Appeal in Okiya and Supreme Court in Hermanus); holding that:
i. The matter to be certified must fall within the terms of Article 165(3)(b) or (d) of the Constitution.
ii. The matter must raise substantial question(s) of law.
iii. The Applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest.
iv. The Applicant must show that there is a state of uncertainty in the law.
v. The Applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.
vi. The matter is of immense public importance and has unique significance in our constitutional democracy.
vii. Whether the matter is complex.
viii. Whether the matter raises novel points of law.
ix. Whether the matter by itself requires a substantial amount of time to be disposed of.
x. The effect of the prayers sought in the Petition.
41. In determining whether the suit affects the parties and whether it transcends the circumstances of the particular case and has a significant bearing on the public interest this court is satisfied that the suit has evoked consistent public debate, public outrage, and triggered public and workers protests and the issue is the subject of debate by both houses of Parliament. The matter is of immense public importance and has unique significance in our constitutional democracy under Article 10 of the Constitution.
42. This court is in agreement with the 1st Respondent’s submission that though the matter significantly affects public interest, this is not the decisive factor in determining an application for certification. It depends on the circumstance of each case. No doubt this resonates with the principles as enunciated in the case of Esther Awuor Adero Ang'awa (supra).
43. It is this court’s finding that there is a probability that this suit requires a substantial amount of time to be disposed of going by the volumes of pleadings and the annexures that parties have lodged in the Court tracking system.
44. The Applicant has identified the applicability of Articles 10, 201, and 227 to the Public Private Partnerships Act, 2021 and also raised the issue of the apparent conflict between the Public Private Partnership, on the one hand, and Article 227 and the Public Procurement and Asset Disposal Act, Cap 412C.
45. On their part, the Respondents held the view that on the alleged conflict between Article 227 of the Constitution, the Public Private Partnerships Act and the Public Procurement and Asset Disposal Act the Applicant failed to show how the two are in conflict.
46. The Respondents case is that there is no conflict in law since the PPADA was enacted to provide procedures for efficient public procurement and disposal of assets by public entities in line with Article 227 of the Constitution and further it is their case that The PPADA provides for various procurement methods, procedures, contracts, disposal of assets, administrative review proceedings, offences and sanctions for breach of the Act.
47. The Respondent further submitted that the PPP Act on the other hand provides for participation by the private sector in financing, construction, operation, development and or maintenance of infrastructure or development projects through public private partnerships to streamline the regulatory framework for such partnerships.
48. They submitted that the PPP Act provides under Section 75 for the challenge of any decision of a contracting authority, the Public Private Partnership Committee and the Directorate of Public Private Partnerships.
49. The Respondents argued that the Privately Initiated Proposal (PIP) the subject of the proceedings herein is by the 5th Respondent pursuant to Section 40 of the PPP Act and that the issues raised by the Ex-parte Applicants and any dispute arising from the Publicly Initiated Proposal of the 5th Respondent, any decisions by the 1st Respondent as the contracting authority are to be resolved within the provisions of the PPP Act and the forum provided under Section 75 of the PPP Act and not the PPADA.
50. Upon weighing the rival arguments and positions as advanced by the parties herein, this court is guided by the holding in the case of Esther Awuor Adero Ang'awa (supra) in finding that the Applicant has adequately identified and concisely set out the specific substantial question or questions of law which it attributes to the matter for which the certification is sought.
51. This court is not supposed to delve into the merits of the case once it is satisfied that that the Applicant has identified and concisely set out the specific substantial question or questions of law which it attributes to the matter for which the certification is sought and I so hold.
52. To delve deep into a merit analysis at this stage in trying to determine how the two sets of laws conflict would prematurely and unfairly compromise and prejudice the parties’ cases early in the day. This court has exercised restraint so as to remain within the principles as laid out in the Esther Awuor Adero Ang'awa (supra).
53. The fact that there are many advocates in a matter or that there is senior counsel in a suit cannot form the basis of certification of a matter. That argument by the Applicant carries no weight.
54. The argument that this application will delay the determination of all the preliminary issues and ultimately the main suit does not accord with the right to fair hearing as guaranteed under Article 47 and the right to access to justice as guaranteed under Article 48 of The Constitution. The Respondents have not demonstrated how the process of the empanelment of an uneven bench will delay the determination of this suit.
55. The argument by the 2,3,4 and 5th Respondents that the prejudice that will be occasioned by the delay of the determination of the application for conservatory orders far outweighs the benefits of having 3 or more judges hear the matter is baseless in the circumstances.
56. The effect of the prayers sought in the Petition is likely to have on the public, the Applicants and the Respondents cannot be down played. It is a relevant factor that has guided this court in arriving at a decision that the Applicant has made out a case for certification. This court is guided by the findings in the case of Martin Nyaga and Others v Speaker County Assembly of Embu and 4 Others and Amicus [2014] eKLR, the Court articulated that the principles applicable when making a declaration under Article 165(4) include:
a) whether the matter is complex;
b) whether the matter raises a novel point;
c) whether the matter by itself requires a substantial amount of time to be disposed of;
d) the effect of the prayers sought in the Petition and the level of public interest generated by the Petition.
57. Upon perusing the pleadings, the application, Affidavits and submissions as filed by the parties herein in the instant suit, it is this court’s view that the issues raised in the suit transcend the dispute between the parties before court and they significantly affect the larger public.
Disposition:
58. I am satisfied that the Applicant has made out a case for the certification for the empanelment of a bench of Judges by The Honorable Chief Justice.
Order:
1) This matter is hereby certified and referred to the Chief Justice forthwith for the Constitution of a bench in terms of Article 165 (4) of the Constitution.
2) Orders accordingly.