Ann Waiguru & another v Martha Wangari Karua & 2 others
The bottom line
#Supreme Court refused to halt a case, saying the High Court must first decide its own jurisdiction.
What this practically means
#Martha Karua and another asked the Supreme Court to stop an election petition from being heard in the High Court. They argued the High Court had lost the power to hear it because the six-month deadline for election petitions had passed. The Supreme Court said no. It explained that any challenge to a court's power must first be raised in that same court. The High Court can decide on its own jurisdiction. The Supreme Court will not interfere before the High Court has made its decision.
Executive summary
#Key legal issues
#Whether the Supreme Court should grant a stay of execution of the Court of Appeal's order remitting an election petition to the High Court, on the ground that the High Court's jurisdiction to hear the petition had expired due to constitutional timelines.
The Supreme Court declined to grant the stay, holding that the question of jurisdiction was also pending before the High Court and it would be premature and a usurpation of the High Court's jurisdiction for the Supreme Court to determine it.
The applicants sought to challenge the High Court's jurisdiction to hear the remitted election petition on the basis that the six-month period under Article 87(1) of the Constitution and Section 75(2) of the Elections Act had expired. However, the same issue of jurisdiction had been raised and was awaiting determination by the High Court. The Supreme Court reasoned that it is a trite procedural principle that a party challenging jurisdiction should do so before the court where proceedings are pending, and that every superior court has competence to determine its own jurisdiction. Therefore, making a pronouncement on the issue would usurp the High Court's role. The Court noted that any aggrieved party would have recourse through the normal appellate process after the High Court's decision.
Legal principles established
#- A party challenging a court's jurisdiction must first raise the issue before that court.
- Every superior court in Kenya has the power to decide whether it has jurisdiction over a case.
- The Supreme Court will not rule on a jurisdictional question that is already pending before the High Court.
- Doing so would improperly take over the High Court's role and undermine the proper court hierarchy.
- Parties can still appeal the High Court's decision on jurisdiction through the normal appeal process.
Court orders
#- 1.The application for stay is hereby dismissed.
- 2.No Order as to costs.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Raise jurisdiction early, at the right court
When you want to argue that a court lacks jurisdiction, file that application before the court where the case is pending. Do not wait for another court to decide. The Supreme Court will not step in until the trial court has ruled on its own jurisdiction. This preserves the appellate process and avoids premature intervention.
Respect court hierarchy in disputes
If your business is involved in a case and you believe the court has no authority to hear it, you must raise that objection in that same court first. You cannot skip the lower court and ask a higher court to decide jurisdiction. The higher court will wait for the lower court’s decision before considering any appeal.
Challenge court power at the right time
If you think a court should not hear your case because it lacks jurisdiction, you must raise that issue during the case in that court. You cannot separately ask a higher court to stop the case. The higher court will only step in after the lower court has made its own decision on jurisdiction.
Frequently asked questions
#Can the Supreme Court stop a High Court case in Kenya if I think the High Court has no jurisdiction?+
Not before the High Court has ruled on its own jurisdiction. The Supreme Court will only intervene after the High Court decides. You must first raise the jurisdiction issue before the High Court.
What is the six-month rule for election petitions in Kenya?+
Under Article 87(1) of the Constitution and Section 75(2) of the Elections Act, an election petition must be heard and determined within six months. In this case, the applicant argued that the High Court lost jurisdiction after the six months expired.
How do I challenge a court's jurisdiction in Kenya?+
File a formal application in the same court where the case is pending. The court will first decide whether it has jurisdiction. You can appeal that decision later if you disagree.
What happens if an election petition is filed late in Kenya?+
The court may still hear the petition if the delay is explained, but the opposing party can argue that the court lost jurisdiction. The court must first decide on its own jurisdiction before the case can proceed.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Ann Waiguru & another v Martha Wangari Karua & 2 others", Case Analysis (2018). Application 5 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/50/eng@2018-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.