Court’s ruling on the formation of Judges’ bench
“…although past judicial thinking alluded to the conventional wisdom that many heads are better than one, or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a ‘substantial question of law’ that merits reference to a three-judge-bench means.”
Gilbert Mwangi Njuguna v Attorney General  eKLR
Petition No. 267 of 2009
High Court of Kenya at Nairobi
Mumbi Ngugi, J.
March 16, 2012
The High Court has ruled that not all issues that raise substantial question of law with regard to constitutional rights automatically merit hearing by an uneven number of judges.
In dismissing an application by the petitioner for a reference to a constitutional bench comprising an uneven bench to determine alleged violation of his fundamental rights, Lady Justice Mumbi Ngugi held that the issues arising in the instant application could be adequately dealt with by a single judge and observed that in the event that any party to the matter was not satisfied with the decision of the single judge, the appeal process was open in which a bench of three appellate judges would consider the matter and further appeal to the Supreme Court if needed be.
The petitioner, Gilbert Mwangi Njuguna, had filed a petition alleging violation of his fundamental rights under sections 71, 73, 74, 75, 77, 82 and 84 of the former Constitution that arose with regard to his removal from his position as a magistrate. Amongst the orders that the petitioner sought included an order that the file be referred to the Chief Justice for purposes of constituting a three-judge-bench to hear the petition.
Ms. Mwangi representing the petitioner made reference to an article by former Chief Justice F. K. Apaloo carried in the Nairobi Law Monthly (January, 1995) on the circumstances in which the Chief Justice should appoint a three-judge-bench to hear a matter under section 84 of the former Constitution as being where complex issues of determinations of constitutional issues are raised. She further relied on the case of Samuel Kamau Macharia & another v. Attorney general & another  eKLR in which the former Chief Justice Bernard Chunga while appointing a three-judge bench set out the matters to be considered in appointing a three-judge-bench, among them that the motion seeking the referral should not be frivolous and must raise matters of considerable complexity and gravity in relation to the interpretation of the Constitution.
Ms. Mwangi submitted that the issues raised by the petitioner needed to be considered by more than one judge as they included a challenge of the manner in which the former Judicial Service Commission (JSC) had terminated the petitioner’s employment. Further, the petitioner argued that the matter touched on a critical issue of the nature and scope of judicial independence both under the former and the current Constitutions.
The petitioner contended that the petition therefore raised serious constitutional issues which were not just complex but of public interest too, and which warranted the reference of the file to the Chief Justice for the constitution of a three-judge-bench to hear the petition. Counsel submitted that the considerations for appointment of a three-judge-bench were now set out under Article 165 (4) of the Constitution which provides that;
“Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.” Conversely, there was no representation for the State at the hearing and no submissions were filed on its behalf.
In dismissing the application, Lady Justice Mumbi Ngugi observed that although past judicial thinking alluded to the conventional wisdom that many heads are better than one - as opined by the then Chief Justice Apaloo - or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a ‘substantial question of law’ that merits reference to such a bench means. The court made reference to the case of Community Advocacy Awareness Trust & others v Attorney General & others  eKLR where the High Court (Majanja, J.) observed:
“The Constitution of Kenya does not define, ‘substantial question of law.’ It is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine a matter.”
The Court in the Community Advocacy Awareness Trust case further observed that in view of the fact that the new Constitution had an expanded Bill of Rights, “every question concerning the interpretation of the Constitution would be a substantial question of law as it is a matter of public interest, affects the rights of the parties, is fairly novel and has not been the subject of pronouncement by the highest court.”
The court noted that the circumstances would defeat the objective of the expeditious justice as outlined under Article 159 (2) (b) of the Constitution, providing that justice shall not be delayed, and therefore the court should consider each case on its merits and determine whether a particular matter ought to be referred to the Chief Justice for constitution of a three judge bench to hear it.
In finding that the issues raised by the petitioner could be adequately dealt with by a single judge, the High Court declined to refer the matter to the Chief Justice for constitution of a bench of an uneven number of judges.