CLA News / The Scope of Public Interest Litigation at the Appellate Courts : Impact of The Supreme Court decision in The Law Society of Kenya v The Communication Authority of Kenya by Wilfred Ochieng

Introduction

The Supreme Court of Kenya recently ruled against the Law Society of Kenya (LSK) in Law Society of Kenya versus Communication Authority of Kenya & 10 others (Petition 8 of 2020) [2023] on the basis that the society had no standing before the court. The law society had lodged an appeal to the Supreme Court on an issue of interpretation of the constitutional right to privacy. According to Article 163 (4) (a) of the Constitution, an appeal from the Court of Appeal to the Supreme Court is presumed automatic in matters that involve Constitutional interpretation. As a result, no prior need for leave of the court was necessary for the Supreme Court to admit the appeal.

On a preliminary basis, the Supreme Court knocked out the society’s appeal stating that they were not a party aggrieved by the decisions of the Court of Appeal. The court further directed the law society to pay the costs of the appeal. The court’s judgement sparked debate on public interest litigation at the appellate level and raised questions about public interest groups’ right of standing at the appeal stage. This article focuses on the potential impact of the Supreme Court’s judgement on the advancement of public interest litigation, the rule of law and constitutionalism.

Constitutional Basis of Standing

Public interest litigation (PIL) involves public-spirited individuals or organizations approaching the courts for legal solutions on behalf of the public or class of persons. A public interest litigant need not be directly affected. Thus, legal standing in public interest litigation is a question of the rule of law rather than the enforcement of private rights. In Kenya, public interest litigation is rooted in Articles 22 and 258 of the Constitution of Kenya, 2010. These provisions permit any ‘person’ to approach the courts and further bind the courts to grant audience to public interest litigants on matters touching on alleged violations of human rights and other violations of the constitution. It is unclear, nevertheless, whether the ‘court’ envisaged under the two provisions solely encompasses the High Court, which has original jurisdiction to hear and determine matters touching on human rights and interpretation of the constitution as stated in Articles 23 and 165.

In the LSK case, the Supreme Court directed its mind to the import of the constitutional dicta in Articles 22 and 258, as it applied to the facts before it. The relevant facts of the case are that the law society which appealed to the case was never a party at the High Court and the Court of Appeal. The question that arose, therefore, was whether the society could be considered an aggrieved party for purposes of appealing the decision. The Supreme Court resorted to its appellate jurisdiction under Article 163 (4) and, with Rule 36 of the Supreme Court Rules, held that ‘the scope of who ‘a person’ is, should mirror the jurisdiction of this court.’ The court supposes that ‘the definition of a person’ seeking to file an appeal only extends to a party aggrieved by a decision issued against him” that informs this discussion.

Was the Law Society an Aggrieved Party?

To understand the difficulties with the court’s approach, one must understand the ‘grievances’ with the judgement. In a nutshell, the Court of Appeal decision was that the installation of the DMS did not threaten the consumer’s rights to privacy and therefore did not breach the Constitution. The nature of the finding of the Court of Appeal was in rem rather than in persona, meaning that the parties before the courts were affected in equal measure as the public. There was, therefore, no particular disadvantage that the parties before the Court of Appeal could suffer if a decision had been made to consider the LSK case.

The question remains if it was fair for the court to hold that the right to appeal such a decision rendered in rem as extending only ‘to a party who is aggrieved’ by a decision? What purpose, if at all, does the reference to ‘person’ as opposed to ‘party’ in Articles 22 and 258 serve in the light of public interest litigation?

It can be adequately argued that the term ‘party’ is a jargon of the civil procedure code. The civil procedure regulates the role and conduct of individuals in a legal system or even the judicial system. The civil procedure provides for issues dealing with proper parties to a suit, joinder, and non-joinder of necessary parties, etc. As such, strictly adhering to the civil procedure interpretation of who an essential party means that only the participants in a suit can be aggrieved with a judgement. However, this strict interpretation automatically locks out a public interest litigant motivated to promote the rule of law and constitutionalism. Thus, to avoid the riddles of the civil procedure nuances of ‘party’, the drafters of the Constitution and even the Supreme Court Rules chose the liberal terminology of a ‘person’. The word ‘person’ as opposed to ‘party’ is liberal because it is already defined in Articles 22, 258 and 260 of the Constitution to include those who may not be directly considered as ‘party’ in civil procedure.

Conclusion

From the liberal construction of ‘party’ demonstrated, it follows that the society was not a ‘party’ to the suit, but a ‘person’ aggrieved with the decision. Thus, as per Article 258 of the Constitution, the society had standing in approaching the apex court to correct what it considered a breach of the Constitution. In disqualifying the society, the Supreme Court reestablished the ‘party’ barrier to access to justice and discouraged activism by public interest litigants at the appellate courts. This is identical to the now primarily eroded shackles of locus standi. In conclusion, the decision negatively affects the advocacy work of public interest litigants and inhibits novel strategies in defending the rule of law at the appellate forums.

Author: Wilfred Ochieng

Designation: Legal Associate

Organisation/Law Firm: Prof. Albert Mumma & Company Advocates

Email: oochifred@gmail.com 

Country: Kenya