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Supreme CourtStruck OutCivil Application 31 of 2020

Clement Kungu Waibara v Annie Wanjiku Kibeh & another

Supreme Court of Kenya
4 December 2020
999 words in judgment
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The bottom line

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Supreme Court cannot hear appeals from interim Court of Appeal rulings – only final judgments.

What this practically means

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The Supreme Court struck out an application because it tried to appeal an interim decision (a stay order) from the Court of Appeal. The Supreme Court only handles appeals after the Court of Appeal has made a final decision. Without a final judgment, the Supreme Court has no power to intervene. This ensures cases are not interrupted prematurely and prevents unfairness.

Executive summary

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The Applicant, Clement Kungu Waibara, filed a Notice of Motion under Section 16(3) of the Supreme Court Act seeking leave to appeal against an interlocutory ruling of the Court of Appeal. The Court of Appeal had granted a stay of execution of a High Court judgment that declared the seat of Member of Parliament for Gatundu North Constituency vacant. The 1st and 2nd Respondents raised a preliminary objection challenging the Supreme Court's jurisdiction to hear the application, arguing that the Court lacks jurisdiction over interlocutory decisions of the Court of Appeal under Article 163(4) of the Constitution. The Supreme Court upheld the preliminary objection, relying on its prior decisions in Teachers Service Commission v. Kenya National Union of Teachers & 3 others and Basil Criticos v. Independent Electoral and Boundaries Commission & 2 others. The Court held that its jurisdiction under Article 163(4) can only be invoked upon a final judgment of the Court of Appeal, not an interlocutory ruling under Rule 5(2)(b) of the Court of Appeal Rules. Without such finality, the Court would be making premature comments on the merits of issues yet to be adjudged, which could prejudice a party and lead to an unjust outcome. Consequently, the Court struck out the Notice of Motion and ordered the Applicant to pay costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear an application for leave to appeal from an interlocutory decision of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules.

Key legal issues

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Whether the Supreme Court has jurisdiction to hear an application for leave to appeal from an interlocutory ruling of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules.

Holding

The Supreme Court lacks jurisdiction to hear such an application because there is no final judgment from the Court of Appeal to anchor an appeal under Article 163(4) of the Constitution.

Reasoning

The Court relied on its prior decisions in Teachers Service Commission v. Kenya National Union of Teachers & 3 others and Basil Criticos v. Independent Electoral and Boundaries Commission & 2 others, which established that the Supreme Court's jurisdiction under Article 163(4) requires a final judgment from the Court of Appeal. An interlocutory ruling under Rule 5(2)(b) does not create the finality needed to invoke the Court's appellate jurisdiction. The Court noted that without a final judgment, it would be premature to comment on the merits of issues yet to be adjudged at the Court of Appeal, and doing so would expose one party to prejudice and risk an unjust outcome.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4) requires a final judgment from the Court of Appeal.
  • Interlocutory rulings under Rule 5(2)(b) of Court of Appeal Rules do not create finality.
  • Without a final judgment, the Supreme Court cannot consider the merits of an appeal.
  • Challenging an interim ruling before final judgment risks prejudice and unjust outcomes.
  • The Supreme Court will strike out applications that improperly seek to appeal interlocutory decisions.
  • Costs are awarded against the party bringing such a premature application.

Court orders

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  1. 1.The Notice of Motion dated 30th October 2020 is hereby struck out.
  2. 2.The Applicant shall pay the attendant costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No. E314 of 2020
Jurisdiction invoked
Article 163(4)(b) of the Constitution; Section 16(3) of the Supreme Court Act

Relief refused

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Leave to institute an appeal before the Supreme Court against the Court of Appeal's interlocutory ruling under Rule 5(2)(b).

The Supreme Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) in the absence of a final judgment from the Court of Appeal.

Costs

The Applicant shall pay the attendant costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we find that this Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court
p. 3 Jurisdiction of the Supreme Court over interlocutory appeals
Without a Judgment of the Court of Appeal which would then create a finality to contested issues and then point parties to the specific limb in Article 163(4) to which our intervention would be required, we cannot see how our jurisdiction under that Article can be properly invoked.
p. 4 Requirement of finality for Supreme Court jurisdiction
The Notice of Motion dated 30th October 2020 is hereby struck out.
p. 4 Final orders
The Applicant shall pay the attendant costs.
p. 4 Costs order

Key timeline

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2020-10-30
Applicant files Notice of Motion seeking leave to appeal an interlocutory ruling of the Court of Appeal.
After motion filed
Respondents raise preliminary objection challenging Supreme Court's jurisdiction.
Ruling date not specified
Supreme Court upholds objection, strikes out motion, and orders applicant to pay costs.

Practical implications

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For lawyers

Jurisdictional limits on Supreme Court appeals

When advising clients on appeals, ensure the Court of Appeal has issued a final judgment before seeking Supreme Court review. Interlocutory rulings under Rule 5(2)(b) cannot be appealed directly. Premature applications will be struck out with costs. Consider alternative remedies like expediting the main appeal.

For businesses

Interim court orders cannot be appealed to Supreme Court

If your business is affected by an interim order from the Court of Appeal (e.g., a stay of execution), you cannot directly appeal that order to the Supreme Court. You must wait for the final judgment. This prevents delays and ensures the Supreme Court only handles final decisions.

For individuals

You cannot skip steps in the appeal process

If you lose an interim ruling at the Court of Appeal, you cannot jump directly to the Supreme Court. You must wait for the final outcome of your case at the Court of Appeal. Trying to appeal too early will waste time and money, and you may have to pay the other side's legal costs.

Frequently asked questions

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Can I appeal an interim court order to the Supreme Court in Kenya?+

No. The Supreme Court only hears appeals from final judgments of the Court of Appeal. Interim orders, like a stay of execution, are not final. You must wait for the Court of Appeal to issue a final decision before you can appeal to the Supreme Court.

What is Rule 5(2)(b) of the Court of Appeal Rules in Kenya?+

Rule 5(2)(b) allows the Court of Appeal to grant interim relief, such as a stay of execution, pending the hearing of an appeal. It is not a final decision. The Supreme Court has ruled that it cannot hear appeals from such interim rulings.

What happens if I file a premature appeal to the Supreme Court in Kenya?+

The Supreme Court will strike out your application and order you to pay the other party's costs. You cannot appeal an interlocutory ruling from the Court of Appeal directly to the Supreme Court. You must wait for a final judgment.

Does the Supreme Court have jurisdiction over all Court of Appeal decisions in Kenya?+

No. The Supreme Court only has jurisdiction over appeals from final judgments of the Court of Appeal under Article 163(4) of the Constitution. Interlocutory or interim decisions cannot be appealed to the Supreme Court.

Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Clement Kungu Waibara v Annie Wanjiku Kibeh & another", Case Analysis (2020). Civil Application 31 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/5/eng@2020-12-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.