ACCESS TO COURT UNDER THE CONSTITUTION DOES NOT OPERATE IN A VACUUM: THE DOCTRINE OF EXHAUSTION OF STATUTORY REMEDIES

Overview

The Jurisdiction of a Court of law/equity i.e. the power to hear and determine a matter is traditionally not to be invoked in a routine fashion but until all statutory and alternative mechanisms have been exhausted.[1] Such jurisdiction flows from either the Constitution or legislation or both.[2] Thus, a party approaching court must invoke the requisite jurisdiction court in a manner laid down by the relevant law, constitution or common law.[3] The available mechanisms under the relevant law, statute or otherwise must have been exhausted for a suit to be certified as ripe, otherwise, it is termed as moot.[4]

Exhaustion of remedies is an old age principle and a party that prematurely approaches court is liable to have its suit struck out.[5]The Court declines to assume jurisdiction when vital statutory steps have been overlooked. These vital steps and pre-requisite remedies if ignored or disregarded, by operation of law disenfranchises the Court of jurisdiction and consequently, the suit is a non-starter.[6] However, as a general principle, there exists exceptions to the general rule as discussed herein.

The doctrine of exhaustion of local remedies is also closely interlinked with the doctrine of ripeness and mootness of a cause of action. The ripeness and mootness doctrines bars a party from accessing court when he or she has not suffered prejudice or a real threat.[7] The basis of this doctrine is that it is not the business of the court to hypothesise or speculate but rather to interrogate and deal with real issues save in exceptional circumstances where they are called upon to pronounce itself on an impending issue or decision about to happen or undertaken.[8]However, this write-up will briefly analyse the concept of exhaustion of statutory remedies and the exceptions.

Access to Courts of Law under the Constitution of Kenya, 2010

The Constitution of Kenya, 2010 guarantees the right of access to justice and the right to seek redress from the courts under Articles 22, 23 and 258.It offers a radical departure from its predecessor termed as torture-happy and blood thirsty to a progressive modern charter heralding a democratic state and laying down the guiding principles and much premium on substantive justice as opposed to procedural technicalities.[9]

However, these provisions do not operate as constitutional fiat or in a vacuum but rather should be read together with the available statutory provisions on the subject matter based on the unique circumstances of each case. The case of Michael Kojo Otieno & another v County Government of Homa Bay & 9 others [2018] eKLR is indicative of these provisions. The Court succinctly observed that:-

“Certainly Article 258 (1) grants every person the right to institute court proceedings claiming that the constitution has been contravened, or is threatened with contravention. I think the petitioners had a valid concerns (sic) following the sectoral reports and the audit queries, but they were in haste and did not await the structural modes set in place to play their role.”

The foregoing legal position introduces the concept of limitation of constitutional rights. Limitations are generally contemplated under Article 24 of the Constitution through a centralised limitation clause.[10]The right to access court is therefore limited by the pre-requisite that a party must exhaust the remedies available under statute. Consequently, applying the limitation, the honourable Court dismissed the petition Michael Kojo Otieno& another v County Government of Homa Bay & 9 others (Supra) whilst warning that the existence of a public interest or the fact that a matter is a matter of public interest, does not entitle a party to leapfrog duly laid down process and immediately go to court as the petitioners herein.[11]

The law has the integral role of regulating and guiding relationship in a society by providing and facilitating access to courts and other fora for dispute resolution which is a fundamental facet of democratic order.[12]However, without the above contemplated limitation the vital tool becomes an unruly horse.[13]

Constitution does not operate in a Vacuum

As earlier alluded, the existence of a constitutional right to access court is not a magical enchantment but rather a guarantee that operates within a legal matrix. It is not a ticket for a party to leapfrog, surmount or bypass other statutory remedies or laid down apparatus for addressing grievances. The High Court in the case of Kenya Builders & Concrete Company Limited v National Government Constituency Development Fund Committee- Embakasi South & another [2017] eKLR endorsed the foregoing by stating that:-

Article 22 and 258 gives any one a right of access to the court on allegations of breach or threatened breach of the bill of rights. Article 165 give the High Court unlimited jurisdiction. However, the Constitution does not operate in a vacuum and did not oust the normal statutory mechanisms unless these are shown to be contradictory to constitutional provisions.”

It therefore organically crystallises that the only way to justify leapfrogging or bypassing the established statutory remedies is by establishing their unconstitutionality or contradiction with the constitution.[14]Without establishing the contradiction, a court of law falls back to the default position as established by the timeless classic of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR that without jurisdiction, a court of law downs its tools. Lack of jurisdiction is a legal black hole, no matter can escape its pull.

Rationale, Foundational Basis and Notable Statutory provisions

Courts of law in as far as they are used in the adjudication of disputes. However, the process may be used for extraneous goals and ends[15] i.e. to defeat the course of justice or to frustrate a statutory process.[16] A particular example to this is the scenario found in the application of section 30 (1) of the Land Adjudication Act, Cap. 284. The import of limiting access to court during the adjudication process is to safeguard the adjudicating process from being run amok by endless litigation.

The High Court sitting at Mombasa acknowledging the need to safeguard statutory functions and processes in the case of Stanley Lezen Mliwa v Leonard Kapala Makangalu & 2 Others [2007] eKLR stated that:-

“I do not accept Mr. Gichana’s argument that by dint of Section 60(1) of the Constitution I should ignore Section 30(1) of the Land Adjudication Act and entertain this suit.  In my view the two sections are not in conflict.  Section 30(1) of the Land Adjudication Act does not oust the court’s jurisdiction.  All it does is to stop parties from rushing to court on any and every disagreement in the adjudication process until it is complete.  If it were to be ignored, I do not think any adjudication process will be completed.  Disagreements on even a minor issue like the boundary line will be taken to court and stall the adjudication process.  That would be disastrous and definitely not in the public interest.”

 

“Besides this it is a common principle of our law that where the Constitution or an Act of Parliament makes provision for the resolution of any grievance that provision should not be circumvented.  See Speaker of National Assembly –Vs- Karume [1990-94] EA 549, Kipkalia Kones –Vs- The Electoral Commission of Kenya & others, Civil Appeal No. 94 of 2005 (CA) and Narok County Council –Vs- Trans Mara County Council and Another, Civil Appeal No. 25 of 2000 (CA).”

Further, for efficiency purposes and expending the minimum resources and at the same time employing the requisite expertise in resolving a matter, statutes lay down mechanisms of resolving disputes.This safeguard was buttressed in the case of Julius Katana Kithi & another v Franklin Vuru Chiruu & 5 others:

In my view, the reasoning behind Section 30 of the Land Adjudication Act is to leave the process of determining the rights of the people within an adjudication area to the mechanism set out under the Act and not to the Courts.  It is the people on the ground who best know who is entitled to what area of land that is the subject of an adjudication process.  The effect of Section 30 is to remove that determination from the jurisdiction of the Court and to allow the matter to be first determined locally within the guidelines set under the Act.[17]

Thus, in instances where the available expertise and machinery can be deployed to achieve a specific goal is possible, approaching court is delayed. This promotes both efficiency and access to justice which is the main goal of Article 48 of the Constitution. Another example can be found under section 18[18] and 19 (1) and (2) of the Land Registration Act, 2012.[19] This provision bars courts from entertaining and adjudicating on boundary disputes unless the Land Registrar has fixed the boundaries and indicated that the same if fixed under the Act and noted it in the Register.[20]

The Environment and Land Court encapsulated the above position in the case of case of Wills Ocholla vs Mary Ndege (2016) eKLR in which it held that:-

“In terms of Section 18(2) of the Land Registration Act, proprietors of registered land with a boundary dispute are obligated to first seek redress or solution from the Land Registrar before moving or escalating the dispute to this courtThat where such a party fails to do so and comes to court without first seeking redress from the Land Registry, the court being a court of law has to remind such a party that he/she has moved the court prematurely.  That the provisions of Section 18(2) of the Land Registration Act shows clearly that the court is without jurisdiction on boundary dispute of registered land until after the Land Registrar’s determination of the same has been rendered.”[21]

Exceptions to the General Rule?

Be that as it may, it is noteworthy that there are some exceptions to the general rule. One such exception is the jurisdiction of the High Court in Judicial Review. The High Court sitting as a Judicial Review court has jurisdiction the limitations of alternative dispute resolutions mechanisms notwithstanding.[22]In the foregoing case of Republic v Cabinet Secretary for Petroleum & Mining & 2 others Ex parte Dennis Ruto Kapchok (Suing on his Behalf and on behalf of the Citizens of Tamkal, Kiwawa, Alale, Ortum, Sebit, Pusel and Chepchoi, Iyon, Iyang River, Marich and Endough in West Pokot County; County Governmetn of West Pokot & another (Interested Parties) the Environment and Land Court was moved by way of a preliminary objection to determine whether the ex-parte applicant had moved court prematurely instead of preferring an appeal to the High Court under section 157 of the Mining Act.[23]

The Court on analysing the preliminary objection and the submissions of the parties held that the existence of alternative remedies under the Mining Act did not oust the jurisdiction of the Environment and Land Court provided that a party was able to demonstrate that the subject matter or dispute before court fell within the ambit of Article 162 (2) (b) of the Constitution of Kenya, 2010.

Conclusion

The gist of the foregoing analysis is that in determining whether to approach court and file a suit, there is need to establish whether there exists other statutory mechanisms.This step is critical in choosing the appropriate forum and saving precious judicial time and alleviating the perennial challenge of judicial backlog.

*LL.B (Hons) (Moi), PGD (KSL), LL.M (UON) (Candidate) Associate, Kipkenda& Company Advocates, Advocate of the High Court of Kenya.

[1]Stanley Mungathia Daudi& 4 others v Hon Cyprian Kubai Kiringo Member of Parliament Igembe Central Constituency & 3 others [2013] eKLR; International Centre for Policy and Conflict & 5 others v Attorney General & 4 others [2013]eKLR; Diana Kethi Kilonzo& Another v IEBC & 10 others [2013]eKLR.

[2]Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Paragraph 68.

[3] See, Okiya Omtatah Okoiti& another v Bidco Africa & 4 others; Uhai Lake Forum (Interested Party) [2019] eKLR

[4]Republic v Council for Legal Education Exparte Desmond Tutu Owuoth [2019] eKLR.

[5]Council of County Governors v Attorney General & 12 others [2018] eKLR. The court found that; “Having carefully considered this petition, responses submissions and the relevant authorities and applied my mind to the constitution and applicable law, the conclusion I come to is that the petitioner skipped a vital constitutional and legal step and filed this petition prematurely hence it is unsustainable. Consequently, the petition dated 11th December 2015 is hereby struck out.”

[6] Ibid. the court held that “Flowing from the above authorities, the law is plain that only after exhausting alternative statutory mechanism provided for, should a party move to court. In the present case the petitioner had to first to exhaust the mechanisms provided for in Part IV of the Intergovernmental Relations Act, before instituting court proceedings.”

[7]See, Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eKLR, Paragraph 39; Ferreira v Levin NO & others; Vryenhoek v Powell NO & others 1996 (1) SA 984 (CC) at paragraph [199].

[8] Ibid.

[9] See, Chief Magistrate Court at Kisumu Inquest No. 6 of 2017, In the Matter of Baby Samantha Pendo (Deceased); Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ 14 (1998) South African Journal of Human Rights 146; In the Matter of the Speaker of the Senate & another [2013] eKLR, paragraph 52, the Supreme Court of Kenya stated that ‘Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.

[10]See, Morris Kiwinda Mbodenyi& John Osogo Ambani, The New Constitutional Law of Kenya: Principles, Government and Human Rights (LawAfrica, Nairobi 2012) pp. 228 – 231.

[11]Michael KojoO tieno& another v County Government of Homa Bay & 9 others [2018] eKLR.

[12]Apollo Mboya v Attorney General & 2 others [2018] eKLR, Paragraph 55& 56.

[13]William MutuuraKairiba v Samuel Nkari & 4 others [2019] eKLR.

[14]Kenya Builders & Concrete Company Limited v National Government Constituency Development Fund Committee- Embakasi South & another [2017] eKLR.

[15]See, Intex Construction Ltd v National Housing Corporation [2009] eKLR; Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13; Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR.

[16] See, Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR

[17]Julius Katana Kithi & another v Franklin Vuru Chiruu & 5 others [2017] eKLR Paragraph 11.

[18] Provides that – Boundaries

(1)        Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.

(2)        The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.

(3)        Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:

Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).

[19] Provides that:- a)    If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.

  1. b) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.
  1. c) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.

[20] See, Maurice OmoroOudu& 2 others v Kisumu District Land Registrar & 2 others [2019] eKLR.

[21]Wills Ocholla vs Mary Ndege (2016) eKLR.

[22]Republic v Cabinet Secretary for Petroleum & Mining & 2 others Ex parte Dennis Ruto Kapchok (Suing on his Behalf and on behalf of the Citizens of Tamkal, Kiwawa, Alale, Ortum Sebit, Pusel and Chepchoi, IyonIyang River, Marich and Endough in West Pokot County; County Governmetn of West Pokot & another (Interested Parties) [2019] eKLR, Paragraph 26.

[23] See, Mining Act No. 12 of 2016.

IMG-20200130-WA0016
IAN TUM
Associate, Advocate of the High Court of Kenya

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