Beyond Desire - Unpacking The Strict Threshold for Bench Empanelment Under Article 165(4) of The Constitution of Kenya
By Faith Cherop Advocate | Despute Resolution, ESG Matters
“….it is not a Party’s desire to be heard by an uneven bench that carries the day, for the Court to refer the matter for empanelment, it must be satisfied that the threshold for empanelment has been met….”
On 22nd May 2025, Hon. (Mr.) Justice Lawrence Mugambi (the Judge) struck out an application that sought empanelment of a bench of judges to hear and determine the Petition in HCCHR PET. No. E6262 OF 2024: Katiba Institute vs. National Assembly & Others (the Petition). The Petition challenges the constitutionality of sections 59,60,61,62 and 72(1) of the Public Private Partnerships Act, 2021 and alleges that it confers the Executive with the ultimate authority to approve public expenditure in the ratification of all PPP related concession agreements without Parliament playing any role.
In analyzing the Application, the court relied on decided cases that interrogated the meaning of substantial question as envisioned under Article 165(3)(b) (d) and (4). Further reliance was made on the Supreme Court case of Magare Gikenye J Benjamin v Salaries and Remuneration Commission & 146 others; Senate & 9 others (2021) KEHC 13290 (KLR) which set out the principles to be met for an application seeking empanelment of a bench of judges to include:
- for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
- where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;
- such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
- where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
- mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
- the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;
- determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
The Court of Appeal in the case of Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] KECA 679 (KLR) modified the aforementioned principles to include the following that need to be established in certification of a matter for empanelment of a bench of judges:
- For a case to be certified as one involving a substantial point of law, the intending 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;
- The applicant must show that there is a state of uncertainty in the law;
- The matter to be certified must fall within the terms of Article 165 (3)(b) or (d) of the Constitution;
- 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.
The Judge in dismissing the Application noted that it did not satisfy the threshold for empanelment and that the issues raised in the Petition involve application of principles of constitutional interpretation, which issues have been determined severally by single judges.
Recently, in the case of Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR), the Court of Appeal in hearing and determining an appeal challenging among others, the action by the Deputy Chief Justice to empanel a bench of judges, ruled that the discretion granted to the Chief Justice by Article 165(4) to empanel a bench is a power solely granted to the Chief Justice. It is the Chief Justice, and she alone, who can decide the number of judges to assign a matter.
Consequently, although the question of empanelment of a bench of judges is established under Article 165(4) of the Constitution, it should be strictly considered by courts of law within the set parameters as established by judicial precedents.