REPUBLIC OF KENYA

IN COURT OF APPEAL AT NAIROBI

CIVIL APPEAL NO. 121 OF 2014
BETWEEN

WALTER O. BARASA

APPELLANT

VERSUS
THE CABINET SECRETARY MINISTRY OF INTERIOR
AND NATIONAL CO-ORDINATION
HON. ATTORNEY GENERAL
THE DIRECTOR OF PUBLIC PROSECUTIONS
THE INSPECTOR GENERAL OF POLICE
WILFRED NGUNJIRI NDERITU
OKIYA OKOITI OMTATAH
REV. JOHN MBUGUA

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT

(Appeal from the Ruling, Order and Directions of the High Court of Kenya at Nairobi made by the
Honourable Justice R. M. Mwongo on 18th day of October, 2013 in Nairobi Constitutional Petition No.
488 of 2013)

BETWEEN

WALTER O. BARASA

PETITIONER

AND
THE CABINET SECRETARY MINISTRY OF INTERIOR
AND NATIONAL CO-ORDINATION
HON. ATTORNEY GENERAL
THE DIRECTOR OF PUBLIC PROSECUTIONS
THE INSPECTOR GENERAL OF POLICE
WILFRED NGUNJIRI NDERITU
OKIYA OKOITI OMTATAH
REV. JOHN MBUGUA

AND

1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
1ST INTERESTED PARTY
2ND INTERESTED PARTY
3RD INTERESTED PARTY

APPELLANTS SUBMISSIONS
A static system of justice cannot be efficient. Benjamin Disraeli said change is
inevitable. In a progressive country change is constant. Justice is a living,
moving force. The role of the Judiciary is to keep the law marching in time with
the trumpets of progress. We do not want to have a wilted legal system in this
country. We want a legal system for the common will.
1

Justice C. B. Madan
Your Honours,
Those memorable words of Justice C. B. Madan in the case of Murai vs Wainaina No. 4
[1982] KLR 38 best express the Appellants quest for justice since he learnt that the ICC
had issued a warrant for his arrest.
Pursuant to the indictment of the Appellant by the International Criminal Court (ICC)
for the alleged offences against the administration of justice, the First Respondent
applied for a Warrant of Arrest and the same was granted by the Principal Judge Mr.
Justice Richard Mwongo on 16th May, 2014 after ex-parte criminal proceedings ordered
by the learned Judge on 18th October, 2013.

I.

INTRODUCTION

The Appellant Walter Osapiri Barasa has appealed against the Ruling, Directions
and Order of the High Court made on 18th October, 2013.

The said Ruling and

directions were precipitated by the following series of events:i) On 15th September, 2013 the Appellant met an Investigator of the International
Criminal Court known as Paul Irani at Topelli Restaurant near Nairobi Hospital
in Nairobi who informed me that the ICC had on 2 nd August, 2013 issued a
warrant for his arrest for various offences against administration of justice.
However, Mr. Irani informed the Appellant that if he agreed to co-operate with
the ICC by implicating through testimony His Excellency Deputy President
William Ruto in respect of the crimes against humanity charges he is currently
facing before the ICC, the said Warrant of Arrest would be withdrawn and he
would serve as an ICC witness with due privileges and protection.
ii) The Appellant refused the offer to testify against the Deputy President Ruto in
exchange for the withdrawal of the ICC Arrest Warrant and non-prosecution for
the alleged offences against administration of justice.

The said Investigator

accompanied by a Caucasian-looking colleague threatened to arrest the

Appellant but they were probably dissuaded from doing because of the
possibility that such an arrest would cause an unusual spectacle in a public place.
2

iii) In the wake of the Appellants refusal to co-operate with the ICC on Monday 30 th
September, 2013 the ICC Prosecutor Fatou Bensouda announced at The Hague
that ICC had indeed issued a warrant of arrest against him on 2 nd August, 2013
and had even made an unsuccessful attempt to arrest him. She further stated
that the warrant for the Appellants arrest and supporting documents had been
forwarded to the relevant Kenyan authorities and the co-operation of the Kenyan
Government was expected.
iv) By a letter dated 4th October, 2013 the Cabinet Secretary, Ministry of Interior and
National Co-ordination the First Respondent wrote the Hon. Mr. Justice
Richard Mwongo, the Principal Judge, High Court of Kenya to transmit an Arrest
Warrant issued by the International Criminal Court in the case of Prosecution vs.
Walter Osapiri Barasa.

The said letter, inter-alia, requested the Honourable

Judge to consider the issuance of the warrant for the Appellants arrest under the
Law of Kenya.
v) On 8th October, 2013 the Appellant filed Constitutional Petition No. 488 of 2013
in the High Court of Nairobi seeking inter-alia the following objectives:a) To challenge the constitutionality of the procedure set out in Part IV of the
International Criminal Act, 2008 in respect of Arrest and Surrender of
Persons to the ICC.
b) Seeking a finding that under the Constitution and Section 9 19 of the
ICA he is entitled to be tried before a competent Court in Kenya in respect
of alleged offences against administration of justice.
c) An order of certiorari to quash the decision of the cabinet Secretary
requesting the Principal Judge to issue a warrant for the arrest of the
Appellant pursuant to Section 29 of the ICA.
d) A finding that the Respondents are prohibited from instituting and/or
maintaining proceedings against the Appellant under Part IV of the ICA
3

unless and until the First Respondent makes the Regulations provided for
under Sections 172 and 174 of the said Act.
vi) Contemporaneously with the filing of the Petition, on 8th October, 2013 the
Appellant filed an application seeking, inter-alia, the following orders:a) THAT pending hearing and determination of this Petition the Honourable court
be pleased to order a stay of the First Respondents request for the arrest of the
Petitioner/Applicant and further proceedings by the First Respondent pursuant to
Section 29(1) of the International Crimes Act, 2008 presented to the Judiciary on
October 7, 2013.
b) THAT pending hearing and determination of this Petition the Honorable Court
be pleased to prohibit the Respondents jointly or severally from further action on
the Request of the International Criminal Court for the arrest and surrender of the
Petitioner/Applicant to the ICC.
vii) On 9th October, 2013 the Appellant filed an application seeking, inter-alia, the
following reliefs:a) THAT the Honourable Court be pleased to order the First Respondent to furnish
the Petitioner/Applicant with copies of the Warrant of Arrest issued against him
by the International Criminal Court and all the documents in support thereof.
b) THAT pending hearing and determination of this Application the Honourable
Court be pleased to grant an order of stay of the decision of the First Respondent
requesting the issuance of a warrant for arrest of the Applicant contained in the
letter dated 4th October, 2013 and for a stay of any proceedings premised on the
First Respondents said Request.
viii) On 10th October, 2013 the parties herein appeared before the Hon. Mr. Justice
G. V. Odunga

for the

hearing

of the

Appellants

two

applications

aforementioned. Before the Appellants advocates could present the same, a

controversy arose as to whether the case should proceed before Justice Odunga
in view of the letter dated 4th October, 2013 addressed to the Principal Judge.
4

The parties submitted at length on the said issue.

By a Ruling dated 11th

October, 2013 Mr. Justice Odunga directed, inter-alia, that the matter be placed
before the Principal Judge for directions and/or further orders.
ix) On 15th October, 2013 the parties appeared before the Principal Judge. The
parties submitted at length on the issues of procedure for the hearing of the
Appellants Petition and two applications on the one hand and the matter of the
Cabinet Secretarys letter dated 4th October, 2013 requesting for a warrant for
arrest of the Appellant on the other hand. On 18th October, 2013 the Principal
Judge delivered a Ruling and Direction to the following effect:a) The 1st Respondent as the State Party, shall, for good order and administrative
convenience, file in this Court by way of a miscellaneous application under the
present file reference, a formal Notification and Request through a complaint or
application to institute the proceedings therein;
b) The said Notification and Request in (a), above, shall be substantially in the form
or a complaint under Section 89 of the Criminal Procedure Code, with necessary
alterations and shall contain the statutory matters set out in Section 29 of the
ICA, No. 16 of 2008.
c) The said Notification and Request shall be filed on or before Monday, 28th
October, 2013, and thereby presented to the Principal Judge.
d) The Petitioner shall forthwith and no later than close of business on 18th October,
2013, make copies of and serve upon the Interested Parties the Petition. In order
to expedite the conclusion of this litigation, the Petition shall be heard without the
necessity of first hearing the First and Second Application.
x) Upon the delivery of the said Ruling and Directions the Appellants advocate Mr.
Kibe Mungai enquired about the mode of hearing the Miscellaneous Application
that the Principal Judge had ordered the Cabinet Secretary to file. The Judge
clarified by stating that the said Misc. Criminal Application seeking the warrant
for Arrest of the Appellant pursuant to Sections 29 and 30 of the ICA will be
heard in his absence.
5

The Appellant was obviously aggrieved by the Ruling and directions made on 18th
October, 2013 hence the Appeal herein.

II.

SUBMISSIONS ON THE GROUNDS OF APPEAL

In his Memorandum of Appeal dated 19th May, 2014 the Appellant relies on 17
grounds. Those grounds can be broadly categorized as follows:a) Alleged violation of the doctrine of separation of powers Grounds 1, 4 and 11.
b) Legality of the Findings, Orders and Directions issued by the High Court
Grounds 2, 3, 10 and 12.
c) The significance and consequences of the Ministers refusal and/or failure to
make Regulations envisaged by Section 172 of the ICA Grounds 4, 5, 6, 7, 8 and
13.
d) Validity of the Order and Directions made on 18th October, 2013 Grounds 9, 14
and 17.
e) Adverse consequences of the Ruling and Directions of 18th October, 2013 on the
Appellants pending Petition.
We propose to submit on the grounds of appeal as categorized above.
1. VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS
GROUNDS 1, 4 AND 11
The constitutional doctrine of separation of powers dictates and envisages the
separation of the functions of government under the three arms of the executive, the
legislature and the judiciary. This doctrine is embodied in Articles 1, 93, 94, 129, 131,
159 and 160 of the Constitution. In practical terms this doctrine means:i)

Judges and magistrates shall not make laws or execute laws.

6

ii) The President and officials of the executive arm of government shall not make
laws or adjudicate over legal disputes.
iii) The legislators shall not implement/execute laws and adjudicate over legal
disputes.
The bone of contention on this matter relates to Section 172(a) of the ICA which requires
the Minister to make regulations to inter-alia, prescribe the procedure to be followed in
dealing with requests made by the ICC. In the impugned ruling the learned Judge at
page 18 (See pg. 240 of the Record) acknowledges that the Minister has not made any
such regulations. In his own words at paragraph 67 of the Ruling the learned Judge
observes:In my view, part of the dilemma facing the court and the parties, is the absence of a clear
procedure for the actions surrounding the steps to be taken upon the issuance of the
Notice and Request. Section 172(a) ICA enables the Minister to make rules for the
procedure to be followed in dealing with requests made by the ICC. The provisions states:
172. The Minister may make regulations, not inconsistent with this act,
for any of the following purposes
(a) Prescribing the procedure to be followed in dealing with requests
made by the ICC, and providing for notification of the results of
action taken in accordance with any such request:..
The Minister has not made any such regulations.
However, after noting the serious lacuna occasioned by the lack of procedural rules
required by Section 172(a) of the ICA the learned Judge proceeded to make orders and
directions to fill the gap. In our humble submission if the executive fails to act in
accordance with the law, the function of the Judiciary is to compel it to do so. It is not
the function of the Judges to do what the law requires the Minister to do. Accordingly,
the Orders and Directions issued by the court at paragraph 67 in relation to the
Notification and Request for the arrest of the Appellant were made in violation of the
doctrine of separation of powers and the same are null and void ab initio.
7

In Liyanage vs. The Queen (1967) AC 259 Lord Pearce observed as follows at page 276
of the Privy Council Judgement:Parliament can make general laws regarding evidence, courts, and so on; and the judges
administer those laws. Only criminal laws were in issue here. Having regard to the
judicial oath which every judge takes and to the protection which he recognizes as
essential under the Constitution, his duty in exercising his judicial function is to
dispense even handed justice to all men according to the laws of the country. From that it
follows that in the exercise of what is merely a legislative power parliament cannot under
the guise of what is called legislation either usurp the judicial function of the judges or
interfere with them.

That is the fundamental distinction which flows from the

constitutional position which arises when there is expressly or by necessary implication a

complete separation of judicial functions.
The corollary of this observation is that whereas it is the exclusive function of judges to
administer law, the exercise of judicial function does not permit them to make law or
rules for administering justice. The Kenyan Constitution is explicit on this given the
following provision of Article 94(5):No person or body, other than Parliament, has the power to make provision having the
force of law in Kenya except under authority conferred by this Constitution or by
legislation.
In the instant case Section 172(a) of the ICA requires the Minister to prescribe the
requisite rules.

This obligation or function cannot be performed by a judge.

The

Minister must make the envisaged regulations and the Judges role is to administer
them because the doctrine of separation of powers does not allow legislative power to
be shared by the judges. In the premises the learned Judges purported to exercise
legislative power when he directed the First Respondent to use Section 89 of the CPC to
lodge a miscellaneous criminal application to seek the arrest of the Appellant.
2. THE LEGALITY OF THE DIRECTIONS ISSUED BY THE HIGH COURT ON
18TH OCTOBER, 2013 GROUNDS 2, 3, 10 AND 12
8

For purposes of enforcement of the Bill of Rights by any aggrieved person Article 22(3)
and (4) of the Constitution provides as follows:(3) The Chief Justice shall make rules providing for the court proceedings referred to in this
Article, which shall satisfy the criteria that
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings,
are kept to the minimum, and in particular that the court shall, if necessary, entertain
proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably
restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the
court, appear as a friend of the court.
(4) The absence of rules contemplated in clause (3) does not limit the right of any person to
commence court proceedings under this Article, and to have the matter heard and
determined by a court.
Pursuant to Article 22(3), by Gazette Notice No. 117 of 28 th June, 2013 the Honourable
Chief Justice made the Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practise and Procedure Rules, 2013 whose Rule 3(2), (3), (4) and (8) provides
as follows:3. (2) The overriding objective of these rules is to facilitate access to justice for all persons
as required under Article 48 of the Constitution.
(3) These rules shall be interpreted in accordance with Article 259(1) of the
Constitution and shall be applied with a view to advancing and realising the
9

(a) rights and fundamental freedoms enshrined in the Bill of Rights; and
(b) values and principles in the Constitution.
(4) The Court in exercise of its jurisdiction under these rules shall facilitate the just,
expeditious, proportionate and affordable resolution of all cases.
(8) Nothing in these rules shall limit or otherwise affect the inherent power of the
Court to make such orders as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.
The above provisions should be read together with Article 20(2) and (3) which deals
with application of the Bill of rights and Articles 24(1) of the Constitution which deals
with limitation of rights and fundamental freedoms. In our respectful submissions in
applying Rule 3 of the Practice and Procedure Rules, 2013 a judge is enjoined to bear in
mind the provisions of the Constitution aforementioned. In paragraphs 58 and 67 of the
impugned Ruling the learned Judge purported to apply the provisions of the
Constitution aforementioned.

We submit that in so doing the learned Judge

misconceived the true objects, purpose and limits of the Courts power to make
directions to facilitate adjudication of the legal dispute before it on the following
grounds:a) The objects and purposes of Articles 22(3) and (4) and 159(2)(d) in constitutional
litigation is to advance and realize the rights and fundamental freedoms
enshrined in the Bill of Rights and uphold the values and principles in the
Constitution. Rule 3(3) of the Practise and Procedure Rules, 2013 expressly state
so. These provisions could only be applied to advance the Appellant/Petitioners
case and in fact the appellant did so. The Rules could not be applied to advance
the States objection to the Appellants case and in fact the Respondent did not
invoke the said provisions. However the learned Judge cited those provisions to
the detriment of the Appellant. In principle the learned Judge failed to draw the
distinction between the State and the Aggrieved Person in litigation seeking
enforcement of fundamental rights and freedoms.

In Thomas P. G.

Cholmondely vs. Republic this Honourable Court held as follows:10

Surely the state cannot qualify as an individual in the sense set out in these
provisions. No individual person can deprive the state of its life or existence; only
another state can deprive the state of Kenya of its right to exist and only through
an act of war. No person can deprive the Republic of its liberty; no person can
hold the Republic in slavery or servitude except another state and by an act of war.
Nor can any person subject the Republic to torture or inhuman or degrading
treatment. All these rights are rights which are inherent in each and every
individual living in Kenya and the prosecution, as an adjunct of the State, cannot
claim those rights as being applicable to them. That must be why Mr. Tobiko was
clearly reluctant to base his claim to entitlement to disclosure under the
provisions of Section 77 of the Constitution. He instead resorted to the provisions
of Section 60 of the Constitution and the inherent jurisdiction of the High Court
as a Court.
In the instant case the learned Judge clearly erred in applying Articles 22(3) and (4) and
159(2)(d) of the Constitution to remedy the Ministers non-compliance with Section 172
of the ICA. The Appellant is all the more aggrieved because the Respondents did not
seek to cure the Ministers non-compliance by invoking those provisions. In fact upon
the learned Judge finding that the Minister had not complied with the law he was
enjoined to quash the Ministers letter of 4th October, 2013 or at the very minimum he
could not act on the same. Moreover, there was no legal basis for the Judge to hold that
there would be no harm in commencing the proceedings under Part IV of the ICA
under the same file as the Appellants Petition.

This was yet another illegitimate

instance where the Judge was unfairly aiding the States position to the detriment of the
Appellant. In the end the procedure adopted by the learned Judge did in fact prejudice
the Appellant as attested by the Judgement of 31st January, 2014.
Finally, the orders and directions of the Judge made on 18th October, 2013 that the
Miscellaneous Criminal Application be heard ex-parte was a blatant violation of
Articles 20 and 22 of the Constitution and Rule 3 of the Practise and Procedure Rules,
2013. Specifically Article 22(3)(d) of the Constitution provides as follows:the court, while observing the rules of natural justice, shall not be unreasonably restricted
by procedural technicalities;
11

We urge your Lordships to find that in view of Articles 22(3)(d) and 50 of the
Constitution the directions made on 18th October, 2013 amount to a serious subversion
of the Bill of Rights and the Rule of Law for serious contravention of the Rules of
Natural Justice.
The right to fair hearing is one of the major principles of natural justice. There are case
law galore to show that almost invariably where a decision is made in breach of this
principle the same is quashed or set aside because, as Lord Denning said in Kanda Vs.
Government of Malaya (1962) AC 322, a proper hearing must always include a fair
opportunity to those who are parties in the controversy for correcting or contradicting
anything prejudicial to their view. In his words:If the right to be heard is to be a real right which is worth anything, it must carry with
it a right in the accused man to know the case which is made against him. He must
know what evidence has been given and what statements have been made affecting him:
and then he must be given a fair opportunity to correct or contradict them.
In Nyongesa & 4 Others vs. Egerton University College (1990) KLR. 692 at pg 699, the
Court of Appeal (Masime JA) expressed himself as follows:..Did the adjudicating authority in this matter exercise its power and duty
fairly as the rules of natural justice require? The evidence adduced before the
superior court is that the Academic Registrar, the Registrar and a security guard
had information which was placed before the Academic Board and on which it
acted. It was conceded that the appellants were never notified of the allegations
against them nor called upon to answer the allegations. That, in my respectful
view, was not dealing with the matter fairly. I, therefore, hold that the proceedings
of the disciplinary bodies of the respondent college in so far as they concern the
matters complained of by these appellants were in breach of the rules of natural
justice and are consequently null, void and of no effect.
Similarly, orders and directions permitting criminal proceedings to be conducted in the
absence of a suspect or accused person are null and void ab initio. This case is a classic
example.
12

3. VALIDITY OF THE ORDERS AND DIRECTIONS MADE ON 18TH

OCTOBER, 2013 GROUNDS 9, 14 AND 17
The ICC issued a Warrant of Arrest against the Appellant in relation to alleged offences
that under Section 18 of the ICA may be tried and punished in Kenya before a court of
competent jurisdiction. The said Section 18 reads as follows:18. A person who is alleged to have committed an offence under any of sections 9 to 17
may be tried and punished in Kenya for that offence if
(a) the act or omission constituting the offence is alleged to have been committed
in Kenya or on board an aircraft or vessel which is registered in Kenya; or
(b) at the time the offence is alleged to have been committed, the person was a
Kenyan citizen or was employed by Kenya in a civilian or military capacity; or
(c) the person is, after commission of the offence, present in Kenya
(2) A trial authorised by this section to be conducted in Kenya may be conducted in
any court of competent jurisdiction.
Under Article 50(2)(d) of the Constitution the Appellants right to fair trial in relation to
the alleged offence include the right to a public trial before a court established under the
Constitution of Kenya. For avoidance of doubt Article 25 of the Constitution provides,
inter-alia, that the right to a fair trial is one of the rights that shall not be limited. In
view of the foregoing in his Petition dated 8th October, 2013 the Appellant, inter-alia,
challenged the decision of the Minister to commence proceedings for purposes of
surrendering him to the ICC for trial. To actualize the said objection the Applicant filed
a Notice of Motion dated 8th October, 2013 seeking, inter-alia, an order of stay of the
Ministers decision to request for his arrest pending the hearing of the Petition. In short,
the constitutionality of both Part IV of the ICA and the Ministers actions and decisions
were the subject of the Appellants Petition.
Viewed in this perspective, it is easy to understand the Appellants submission that by
ordering the First Respondent to file a miscellaneous criminal application under Section
13

89 of the CPC, the learned Judge effectively applied and enforced the request for the
Appellants trial before the ICC notwithstanding the Appellants contention that he
could only be tried in Kenya. It bears noting that Section 89 of the CPC does not apply
to proceedings before the High Court and the Judge could not lawfully adopt such a
procedure to ventilate the request of the First Respondent.
In our humble submissions the Findings, Orders and Directions made on 18th October,
2014 are based on fundamental misapprehension on the part of the learned Judge of the
following elements and principles of law and justice:i) Pursuant to Article 2 of the Constitution both the Rome Statute and the ICA are
subordinate to the Constitution of Kenya.
ii) In view of Article 50(2)(d) of the Constitution read with Section 18 of the ICA the
Appellant could only be tried in Kenya if he objects to trial before the ICC in
relation to offences which Kenyan Courts have jurisdiction.
iii) In view of Section 18 of the ICA the Minister (read Cabinet Secretary) in
conjunction with the 2nd and 3rd Respondents had a statutory duty to consider
whether the Appellant could be tried in Kenya before applying for a Warrant of
Arrest pursuant to Section 29 of the ICA.
iv) In the event of any conflict relating to place of trial of the Appellant by dint of
Articles 20, 25 and 50 of the Constitution, the Appellants right to trial in Kenya
must prevail.
v) Considering Articles 1, 20 and 50(2)(d) of the Constitution read with Section 18 of
the ICA the learned judge was enjoined to consider that as a citizen of the
sovereign Republic of Kenya the Appellant could not be tried by the ICC if he
objected to such a trial and at the least such objection must be heard and
determined first before ICCs request for co-operation can be acted upon by any
State official in Kenya.

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4. ADVERSE

CONSEQUENCES

OF

THE

FINDINGS,

RULING

AND

DIRECTIONS OF 18TH OCTOBER, 2013 ON THE APPELLANTS PENDING

PETITION.
By his Notice of Motion dated 9th October, 2013 the Appellant, inter-alia, sought
pursuant to Article 35 of the Constitution to be furnished with copies of the warrant of
Arrest issued against him by the ICC and all the documents in support thereof. The
Appellant

stated,

inter-alia,

in

the

said

application

that

he

required

the

information/documents aforementioned in order to meaningfully participate in

proceedings under Part IV of the ICA and to enforce his fundamental rights and
freedoms vide his Petition dated 8th October, 2013.
As adverted to above, by the Ruling dated 18th October, 2013 made the following two
presumptuous findings/orders that were extremely prejudicial to the Appellant:i) There is no harm in commencing the First Respondents proceedings under
Section 29 of the ICA under the same file as the Appellants Petition.
ii) In order to expedite the conclusion of the litigation, the Petition shall be heard
without the necessity of hearing the Appellants two applications.
Under Articles 20 23, 35 and 50 of the Constitution the Appellant was entitled to have
the two applications heard and determined and the court had a positive duty to hear
and determine them. Similarly, judicial or administrative convenience could not be
lawfully and justly deployed to consolidate the hearing of the Appellants Petition to
enforce his fundamental rights and freedoms and the Ministers application for his
arrest under Part IV of the ICA without trivializing the Constitution and compromising
the Appellants rights or trifling with his freedom.
It bears noting that the impugned order and directions were made by Justice Mwongo
pursuant to a ruling of Justice G. V. Odunga dated 11th October, 2013 which, inter-alia,
held as follows:If the Judge is in the process of making a judicial decision it would be highly irregular for
this Court to make a decision whose effect would be to interfere with the decision making
15

process of the Judge when that decision is judicial in nature. If I correctly understood Mr.
Kibe Mungai, since the process which led to the request is itself under challenge even if
the Principal Judge was in the process of making a decision if the decision of the Minister,
the 1st Respondent herein, was to be declared void, it would render the decision of the
Judge inconsequential. In my view if that would the position the effect would be that this
Court would have supervised a court of concurrent jurisdiction
The Principal Judge is first and foremost a High Court Judge and under Article 165(3) a
Constitutional Court hence is empowered not only to exercise the powers conferred upon
him under Part IV of the Act but also to deal with any Constitutional issues that arise
before him either in the course of exercising the powers conferred upon him under the said
Part IV or separately.
We submit that in the circumstances of this matter the constitutional issues raised by the
Appellant could only be fairly and lawfully heard and determined separately, inter-alia,
because in prayers (e), (f) and (g) of his Petition dated 8th October, 2013 the Appellant
sought the following prayers:e) A declaration be issued to declare that by dint of Articles 20, 24, 27, 29 and 50 of the
Constitution the Respondents are prohibited from instituting and/or maintaining
proceedings affecting the Petitioner under Part IV of the International Crimes Act, 2008
unless and until the First Respondent makes the Regulations provided for under Sections
172 and 174 of the said Act.
f) An order of prohibition be issued to restrain the First Respondent from conducting
proceedings under Part IV of the International Crimes Act, 2008 for the Arrest and
Surrender of the Petitioner to the International Criminal Court unless and until the
Director of Public Prosecutions has made the decision under Section 19(2) on whether the
existing exceptional circumstances make it unjust or oppressive to surrender the
Petitioner to the International Criminal Court for prosecution.
g) Pursuant to Article 23, 24, 27, 29, 35, 47 and 50 of the Constitution an order of
certiorari be issued to bring to the High Court and quash the decision of the First
Respondent to request a Judge to issue a warrant for the arrest of the Petitioner pursuant
16

to Section 29 of the International Crimes Act, 2008 and any proceedings that may have
or have been undertaken pursuant to the said Request.
We humbly submit that the Orders and directions of 18th October, 2013 not only preempted the Appellants Petition but they effectively compromised and adversely
predetermined the prayers sought against him. Accordingly, subsequent proceedings in
the Petition and Misc. Application were irredeemably tainted with illegality and vitiated
by unfairness: the Appellant simply could not have a fair hearing after the learned
Judge effectively acceded to ICCs request to try the Appellant!

III.

WHY THE PRAYERS SOUGHT SHOULD BE GRANTED

When the learned Judge delivered the impugned Ruling on 18th October, 2013, the
Appellant was apprehensive that the Orders and Directions issued will occasion him
extreme prejudice. With the benefit of hindsight, subsequent proceedings and adverse
outcomes have vindicated the Appellant. The Appellants case is that those orders and
directions tainted the justice process so badly that the prospects of fair trial and
outcome were virtually extinguished. The reliefs sought in this appeal seek to remedy
the wrongs suffered by the Appellant. As the Honourable Mr. Justice Ojwang (as he
then was) held in the case of Lilian Wairimu Ngatho & Another vs. Moki Savings Cooperative Society Ltd Nairobi High Court Civil Suit No. 745 of 2001 (O.S.):Whenever there is a wrong, the ingredients of which touch on the terrain of the law and
legality, there will be a remedy, which the court has an obligation to pronounce upon; and
this is well established under the maxim, ubi jus ibi remedium- where there is a right,
there is a remedy (Ashby v. White (1703) 2 Ld. Raym 955.) Where the statute law
makes no specific provision for remedy, in these circumstances, it falls upon the Court to
draw a remedy out of its resources defined by the common law and equity.
a) The Prayer to Set Aside Orders and Directions Issued on 18th October, 2013.
As adverted to above, the orders and directions made and issued on 18th October, 2013
deprived the Appellant opportunity to canvass two applications and introduced Judgemade procedure to adjudicate over the dispute engendered by ICCs warrant for the
arrest of the Appellant. Cumulatively, the said orders and directions deprived the
17

Appellant of his right to protection of law and fair hearing secured by Articles 20-23, 27
and 50 of the Constitution. In short the said orders and directions should be set aside
for being in contravention of the Constitution.
By dint of Article 94(5) of the Constitution, only the Minister can make rules of
procedure envisaged by Section 172(a) of the ICA. The role of the Judge is to administer
those Rules precisely because the content of rules is always a matter of State policy and
in the instant case political consideration of the relationship between the Kenyan State
and the ICC. As the Tanzanian Court of Appeal held in Attorney General vs. Rev.
Christopher Mtikila [2010] 1 EA, 13:We are definite that the Courts are not the custodian of the will of the people. That is the
property of elected Members of Parliament. So, if there are two or more articles or
portions of articles which cannot be harmonized, then it is Parliament which will deal
with the matter and not the Court unless that power is expressly given by the
Constitution, which we have categorically said, it has not The issue of independent
candidates has to be settled by Parliament which has the jurisdiction to amend the
Constitution and not the Courts which do not have that jurisdiction. The decision on
whether or not to introduce independent candidates depends on the social needs of each
State based on its historical reality. Thus the issue of independent candidates is political
and not legal.
b) The Prayer to Quash Proceedings, Orders and Directions made in
Miscellaneous Criminal Application No. 488 of 2013
As adverted to above the proceedings in the criminal application ordered by the learned
Judge were not conducted in accordance with the procedure envisaged by the law and
the Appellant was excluded from attendance.

Clearly, the Appellants right to

protection of law and the right to fair hearing guaranteed by Articles 27 and 50 of the
Constitution were violated without any lawful justification contemplated under Articles
24 and 25 of the Constitution. In the premises the ex-parte criminal proceedings in
Misc. Criminal No. 488 of 2013 are null and void ab initio.

We submit that the

proceedings orders and directions made in Misc. Criminal Application No. 488 of 2013
are illegal; therefore null and void ab initio. As this Honourable Court held in Mapis
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Investment (K) Ltd vs. Kenya Railways Corporation [2005] eKLR (quoting a passage
from the judgement in Scott vs. Brown):
Ex turpi causa nor oritur action, This old well known legal maxim is founded in good
sense, and expresses a clear and well recognized legal principle, which is not confined to
indictable offences. No court ought to enforce an illegal contract or allow itself to be made
the instrument of enforcing obligations alleged to arise out of a contract or transaction
which is illegal, if the illegality is duly brought to the notice of the Court, and if the
person invoking the aid of the Court is himself implicated in the illegality. It matters not
whether the defendant has pleaded the illegality or whether he has not. If the evidence
adduced by the plaintiff proves the illegality the court ought not to assist him
c) The Prayer for Stay of Notification and Request for Arrest of the Appellant
dated 4th October, 2013
Some of the most critical safeguards of fair trial in criminal proceedings are embodied
in Article 50 of the Constitution which basically envisages that there would be a public
trial conducted in accordance with written law and before a fair, independent and
impartial court. The accused person has a right to be present throughout his trial. It
bears noting that the ICC issued a Warrant for Arrest of the Appellant because he is an
accused person before its pre-trial chamber. Unfortunately, throughout the proceedings
leading to the impugned Ruling of 18th October, 2013 the learned Judge seemed to
labour under the misapprehension that the Appellant was a suspect as opposed to an
Accused Person and that as a suspect the Appellant was not entitled to the protection of
Article 50 of the Constitution. This appreciation of the Principal Judges mindset is
basic to understanding how he came up with the unusual Orders and Directions made
on 18th October, 2013.
Hence the said Orders and Directions violated the safeguards aforementioned as
follows:i.

The Rules of Procedure envisaged by Section 172(a) of the ICA have not been
made by the First Respondent.

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ii.

The independence and impartiality of the learned Judge were irredeemably

compromised and tainted when he decided to step in for the Minister to
provide for a procedure to adjudicate over the Ministers application for a
Warrant for Arrest of the Appellant. This was a clear violation of the doctrine
of the separation of powers. In the case of Gachiengo vs. Republic [2000] 1
EA 67 (HCK), a three-judge bench of the High Court held as follows:The doctrine of separation of powers is an old one. To be attained, the role of each
arm of government has to be clearly defined. The judiciary should not be subject
to the dictates of either the executive or the legislature. In the book Wade on
Constitutional Laws (6 ed) the writer maintains that in the field of
independence of the judiciary, separation of powers is strictly observed.

In

Volume 2 of the report of the Royal Commission of Inquiry into Civil Rights
Ontario it was recommended that the regular judicial duties of Judges should not
be interfered with by their appointment to extra judicial duties. With respect, we
agree. On taking up an appointment as a judge, one takes an oath in which he/she
swears to discharge the duties of a judge without fear or favour. In the position as
head of KACA and in view of the duties one is expected to perform, we fail to
comprehend how a High Court judge will feel bound by the judicial oath. We
were asked to hold that as the appointment of Justice Mathew Guy Muli as
Attorney-General and Justice Ringera as Solicitor-General were not questioned,
then the appointment of Justice Ringera as director of KACA should not be
questioned, notwithstanding the fact that he is still a judge of this Court. In our
view, the said appointments contravened the principle of separation of powers and
the fact that they were not challenged is no panacea for the irregularity of the
appointment.
In the instant case, the learned Judge directed that the Misc. Criminal
Application be prosecuted in the absence of the Appellant and indeed he
ensured that was the case. This is a clear violation of Articles 27 and 50 of the
Constitution.
iii.

The essence of the right to protection of law and fair trial under Articles 27
and 50 of the Constitution in criminal proceedings is the principle that the
power to investigate, arrest and prosecute must be exercised in accordance
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with the law which is administered by fair, impartial and independent judges.
In the instant case the Rules of Procedure envisaged under Section 172(a) of
the ICA constitute one of the pillars of safeguarding those cardinal rights. In
the absence of those Rules there cannot be fair and lawful proceedings
envisaged by Articles 27 and 50 of the Constitution.

There can be no

justification for a judge to validate or facilitate criminal proceedings that are

otherwise invalid or imperfect by stepping in for the Minister or aiding the
prosecution through creative interpretation of the law. In Christopher N.
Murungaru vs. KACC & Another [2006] eKLR, this Honourable Court held
as follows:Lastly, before we leave the matter, Professor Muigai told us that their strongest
point on the motion before us is the public interest. We understood him to be
saying that the Kenyan public is very impatient with the fact that cases involving
corruption or economic crimes hardly go on in the courts because of applications
like the one we are dealing with. Our short answer to Professor Muigai is this.
We recognize and are well aware of the fact that the public has a legitimate interest
in seeing that crime, of whatever nature, is detected, prosecuted and adequately
punished. But in our view, the Constitution of the Republic is a reflection of the
Supreme public interest and its provisions must be upheld by the courts,
sometimes even to the annoyance of the public. The only institution charged with
the duty to interpret the provisions of the Constitution and to enforce those
provisions is the High Court and where it is permissible, with an appeal to the
Court of Appeal. We have said before and we will repeat it. The Kenyan nation
has chosen the path of Democracy; our Constitution itself talks of what is
justifiable in a democratic society. Democracy is often an inefficient and at times
a messy system. A dictatorship, on the other hand, might be quite efficient and
less messy. In a dictatorship, we could simply round up all those persons we
suspect to be involved in corruption and economic crimes and simply lock them
up without much ado. That is not the path Kenya has taken. It has opted for the
rule of law and the rule of law implies due process. The Courts must stick to that
path even if the public may in any particular case want a contrary thing and even
if those who are mighty and powerful might ignore the courts decision.

IV.

CONCLUSION
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The principal objectives of the ICA, 2008 includes to make provision to enable Kenya to
co-operate with the International Criminal Court established by the Rome Statute in the
performance of its functions. By dint of Articles 2 and 20 of the Constitution the duty
of the Kenyan State to co-operate with the ICC is subject to the Bill of Rights. In many
ways this appeal has been precipitated by an apparent misconception on the part of the
Principal Judge that the duty of the Kenyan State to co-operate with the ICC trumps the
rights of the Appellant and in the event of conflict the former prevails over the latter.
The Appellant therefore beseeches this Honourable Court that in allowing this appeal,
Your Lordships will do well pursuant to Article 20 of the Constitution to restate the
old truism that the Bill of Rights is not a collection of pious platitudes or a toothless
bull-dog. Let it be clear that if the Kenyan State seeks to surrender the Appellant to the
ICC it must justify why he cannot be tried in Kenya. Similarly, if the Minister seeks to
request the High Court to issue a warrant of arrest of the Appellant, he must first make
the Rules of Procedure envisaged under Section 172(a) of the ICA.

At the very

minimum that is what the Appellant is entitled to as a citizen of the sovereign Republic
of Kenya.
As always we are most obliged, Your Honours.
DATED at Nairobi this

day of

2014

KINOTI & KIBE COMPANY

ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
KINOTI & KIBE COMPANY
ADVOCATES
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TO BE SERVED UPON:
THE HON. ATTORNEY GENERAL
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