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Supreme CourtStruck OutPetition (Application) E015 of 2023

County Assembly of Migori v Aluochier & 2 others

Supreme Court of Kenya
27 October 2023
1,630 words in judgment
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·~7 min to read original · ~4 min brief

The bottom line

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Supreme Court struck out appeal because Court of Appeal judgment lacked reasons, making it incomplete.

What this practically means

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The Supreme Court of Kenya struck out an appeal and cross-appeal because the Court of Appeal had not given reasons for its original decision. Without those reasons, the Supreme Court could not check if it had the legal power to hear the case. The parties must wait for a full, reasoned judgment before appealing again.

Executive summary

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The Supreme Court of Kenya, in a ruling delivered on October 27, 2023, struck out a Notice of Motion, a Petition of Appeal, and a Cross-Appeal arising from a dispute involving the County Assembly of Migori. The Applicant, the County Assembly of Migori, had filed a Notice of Motion seeking to strike out the 1st Respondent's Supplementary Record of Appeal and cross-appeal. However, the Court, on its own motion and after considering submissions from all parties, first addressed a preliminary issue: whether the appeal was properly before it. The Court noted that the judgment of the Court of Appeal, which was the subject of the appeal, was delivered on May 26, 2023, without reasons, and that the reasons were to be delivered later. The Court held, relying on its previous decisions in Jimi Richard Wanjigi v Wafula Chebukati & 2 others and Oscar Oluoch Ouma Abote v Loice Akoth Kawaka & 4 others, that a petition of appeal cannot be jurisprudentially determined in the absence of reasons for the impugned judgment. The Court reasoned that it could not determine its own jurisdiction without a wholesome judgment from the Court of Appeal. Consequently, the Court found that both the petition of appeal and the cross-appeal were not properly before it and struck them out. The Court also struck out the Notice of Motion as it could not be considered in the absence of a valid appeal. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the petition of appeal and cross-appeal are properly before the Court in the absence of reasons for the Court of Appeal judgment.

Key legal issues

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01

Whether the petition of appeal and cross-appeal are properly before the Supreme Court in the absence of reasons for the Court of Appeal judgment.

Holding

The petition of appeal and cross-appeal are not properly before the Court because the Court of Appeal judgment was delivered without reasons, and the reasons were not yet provided. The Court cannot determine its jurisdiction without a reasoned judgment.

Reasoning

The Court of Appeal delivered a brief judgment on May 26, 2023, with no reasons, and directed that reasons would be delivered on September 22, 2023. The Supreme Court noted that it was not aware if the reasons were delivered, but it did not matter because there was no reasoned judgment before it. Relying on its prior decisions in Jimi Richard Wanjigi v Wafula Chebukati & 2 others and Oscar Oluoch Ouma Abote v Loice Akoth Kawaka & 4 others, the Court held that a petition of appeal cannot be determined without reasons for the impugned judgment. The cross-appeal, being similarly grounded on the same reasons, suffered the same fate. Consequently, the Court struck out both the petition of appeal and the cross-appeal.

Legal principles established

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  • A petition of appeal cannot be decided without the reasons for the lower court's judgment.
  • The Supreme Court cannot determine its own jurisdiction without a complete, reasoned judgment from the Court of Appeal.
  • A cross-appeal that depends on the same missing reasons is also struck out.
  • A notice of motion cannot proceed if the main appeal is invalid.
  • Each party bears its own costs when an appeal is struck out for procedural defects.

Court orders

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  1. 1.The Notice of Motion dated and filed on August 3, 2023 is struck out.
  2. 2.The Petition of Appeal dated June 12, 2023 as well as the Cross Appeal dated June 27, 2023 as filed by the 1st Respondent are hereby struck out.
  3. 3.Each party shall bear their costs of the proceedings before us.

The bench

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

Martha Karambu Koome
M.K KoomeCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S.C WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Striking out the 1st Respondent's Supplementary Record of Appeal and cross-appeal as sought by the Applicant

The Court found it could not consider the application because the petition of appeal was not properly before it in the absence of reasons for the Court of Appeal judgment.

Costs

Each party shall bear their costs of the proceedings before us.

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.

there can be no basis upon which a petition of appeal can be jurisprudentially determined in the absence of reasons for an impugned judgment.
p. 3 Jurisdiction of the Supreme Court
we cannot determine whether we have jurisdiction to determine the petition of appeal without having sight of a wholesome judgment from the Court of Appeal.
p. 3 Jurisdiction of the Supreme Court
The Petition of Appeal dated June 12, 2023 as well as the Cross Appeal dated June 27, 2023 as filed by the 1st Respondent are hereby struck out.
p. 4 Final Orders
Each party shall bear their costs of the proceedings before us.
p. 4 Costs Order

Key timeline

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2023-05-26
Court of Appeal delivered judgment without reasons, promising reasons later.
2023-06-12
Petition of Appeal filed in Supreme Court.
2023-06-27
Cross-appeal filed by 1st Respondent.
2023-08-03
County Assembly of Migori filed Notice of Motion to strike out cross-appeal.
2023-10-27
Supreme Court struck out all filings, citing lack of reasoned Court of Appeal judgment.

Practical implications

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For lawyers

Wait for reasoned judgment before appealing

Before filing a petition of appeal to the Supreme Court, ensure the Court of Appeal has issued a complete, reasoned judgment. Filing without reasons invites immediate striking out. Advise clients to request reasons promptly and delay further appeals until they are received.

For businesses

Procedural delays can stop your case

If you are a party in a Court of Appeal case, expect that the Supreme Court will not hear an appeal until the Court of Appeal provides full reasons for its decision. This can delay final resolution. Work with your lawyer to ensure all procedural steps are completed before initiating higher appeals.

For individuals

Appeals need complete lower court decisions

If you lose a case in the Court of Appeal and want to appeal to the Supreme Court, you must wait until the Court of Appeal issues a written judgment explaining its reasons. Without that, the Supreme Court will dismiss your appeal. Ask your lawyer to confirm reasons are available before filing.

Frequently asked questions

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What happens if the Court of Appeal in Kenya gives a judgment without reasons?+

The Supreme Court will not hear an appeal from that judgment until reasons are provided. The appeal is considered incomplete and will be struck out. You must wait for the reasoned judgment before filing again.

Can you appeal to the Supreme Court of Kenya without a reasoned judgment from the Court of Appeal?+

No. The Supreme Court has ruled that a petition of appeal cannot be determined without the reasons for the Court of Appeal’s decision. The court cannot even check its jurisdiction without a full, reasoned judgment.

What is a reasoned judgment in Kenya?+

A reasoned judgment is a written decision that explains the court’s findings, the evidence considered, and the legal principles applied. Without it, the appeal process cannot proceed to a higher court.

If my case is struck out by the Supreme Court for lack of reasons, can I refile in Kenya?+

Yes, once the Court of Appeal issues its reasoned judgment, you can file a fresh appeal. The striking out is not a decision on the merits but a procedural bar. Consult your lawyer for the correct timeline.

Cite this brief

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Cite this brief

Caselaw, "County Assembly of Migori v Aluochier & 2 others", Case Analysis (2023). Petition (Application) E015 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/92/eng@2023-10-27

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