In a recent decision, Civil Appeal Number 9 of 2013, the 5 judge bench of the Court of Appeal addressed a myriad of issues and principally among them was the question of locus standi. Who has the right to present a motion before court and can an unregistered entity be represented in court?

For our readers who may not have a legal background, locus standi is a long established principle on who can approach the court to present a matter. It is defined as the right or capacity to bring an action or to appear in a court.

The facts of the case are as follows; the appellants, Randu Nzai and others, described themselves as former officials of the defunct Mombasa Republican Council (MRC). They stated that they represented the interest of the residents and stakeholders of the six coastal counties (Mombasa, Kwale, Kilifi, Tana River, Lamu and Taita Taveta). They sought to challenge the review of names, boundaries, constituencies and wards by the electoral body and stated that such review would disenfranchise them as they did not participate in the process leading to their creation. They also sought among other things, an order to compel the Independent Electoral and Boundaries Commission (IEBC) to facilitate and conduct a referendum on the question of self-determination of the indigenous residents in the coastal region.

It is important to note that at the time the matter was being brought to the High Court, the Mombasa Republican Council was a proscripted organization. That is to mean that they had been declared an illegal organization by the government. This decision was later declared unconstitutional and reversed by the High Court .

The Case at the High Court.

The state counsel argued that the appellants lacked locus standi to bring the originating notice of motion under the umbrella of MRC, “an unregistered, illegal and unlawful society”. They further stated that for the court to entertain the motions filed by the appellants, it would be tantamount to offering legitimacy and recognition to an illegal and proscribed organization.

The High Court in rendering its decision considered that the appellants qualified as “persons” by virtue of Article 260 of the constitution. However, the court held that under Article 22, they did not fit any of the 5 categories of persons authorized by the constitution to institute court proceedings to challenge violation or threatened violation of rights or fundamental freedoms in the Bill of Rights. The court stated that they could not be constituted as a “group” or “class” under Article 258 (2)(b). The High Court stated that “MRC not being registered, or not pursuing the process of registration or exemption from registration, lacks legal capacity. As such, it has brought the motions before us prematurely and without the legal capacity to do so….we hold that neither the applicants as individuals acting on behalf of MRC, nor the MRC as an unregistered, amorphous body espousing an unconstitutional agenda, has either the locus standi or the legal competency to bring the originating motion or the interlocutory motion or to be entitled to pursue the reliefs sought.”

It is this decision that attracted the Appeal.

The Case at the Court of Appeal

At the Court of Appeal the bench was constituted of Appeal Justices Musinga, Ouko, Mohammed, Kiage and M’Inoti.

The appellants challenged the decision of the High Court on 4 grounds:

• The learned judges based their decision to strike out the motions on the ground that MRC was not a registered organization.
• The learned judges ignored the merit of the originating notice of motion and concentrated on the status of the appellants
• Personal qualities of a party before the court ought not to be of any relevance or consequence
• A court of law must never view the identity of a person whose fundamental rights have been violated as more important than the violation itself

The appellants argued that Article 22 grants a right to any person, without any distinction, to institute court proceedings to challenge violation of rights and fundamental freedoms.

The state in turn submitted that the judges properly struck out the originating notice of motion on account of the Appellants lacking capacity to move the court. They further submitted that it was clear that the appellants sought to enforce the Bill of Rights in their capacity as members of MRC on behalf of coastal people, yet MRC was illegal; and that the appellants failed to utilize the opportunity extended to them by the court below to register MRC as a political party.

Court of Appeal decision

The Court of Appeal considered the question of locus to be the core of the appeal. Justice Ouko recognized from the onset that the door to the fountain of justice was slammed in the faces of the appellants by the impugned decision. The learned judge showed how under the former constitution, it provided in no uncertain terms that only a party aggrieved and whose interests were directly  affected could institute proceedings for protection. That was the standard that was set for locus under the former legal regime. As the court rightly noted, this conservative requirement had the effect of limiting access to justice as it treated litigants, other than those directly affected, as mere or meddlesome busy bodies.

Ouko J.A showed that Article 22 and 258 had in essence moved away from this very conservative approach to litigants and had evolved and broadened under the new constitution. Referencing the case of Mumo Matemu v Trusted Society of Human Rights Alliance and Another, Civil Appeal no 290 of 2012 in which the court then held that the stringent locus standi requirements have been buried in the annals of history. In his words “The constitution today gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper, and who acts in good faith to institute proceedings challenging any violations under the Bill of Rights.”

Ouko J.A in rendering the unanimous decision overturning the decision of the High Court held that the learned judges ignored the appellants’ unequivocal plea that they were no longer members of MRC and instead used its proposed constitution to deny appellant’s access to justice. They also failed to appreciate that under the constitution the appellants did not have to be members of a registered group to access the court; and that even as individuals they had the right to complain to the court about what they perceived to be a violation or threatened violation of their and other people’s rights and fundamental freedoms. They ought to have been heard on the merit of their grievance. The exercise of discretion and the trial court’s inherent jurisdiction was improper.

Justice P. Kiage in concurrence aptly encapsulated that to shut a pleader out of the seat of judgment on account of some prior categorization of him as undeserving to bring before court his complaints, regarding violations of constitutional rights no less, appears to be entirely out of step, indeed discordant with and anachronistic to our current constitutional dispensation. In his own words, “the high court drew a line and shut out the appellant from being heard on the merits of their not-insubstantial burdens, pains and travails without at all hearing them. That move by that court was a drastic, draconian and dramatic negation of the entire access to justice project in the circumstances of this case, and I would not endorse it.”

The Court of Appeal has  upheld the right of every person to enter the courts unrestrained and be availed the instruments of justice. And with that the decision of the High Court was overturned.

Katiba Institute through Advocate Waikwa Wanyoike, was involved in this suit as amicus curiae and offered the court assistance in the suit.