Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherNot stated in the judgment· [1993] KECA 60 (KLR)

Madhupaper International Ltd v Attorney General & 5 others [1993] KECA 60 (KLR)

Court of Appeal of Kenya
7 April 1993
950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This interlocutory ruling of the Court of Appeal at Nairobi (Gachuhi, Gicheru and Cockar JJA) arose from an application under rule 5(2)(b) for stay of High Court proceedings and under rule 39(b) for leave to appeal. The applicant had sought constitutional declaratory orders, an injunction and damages against the State under section 82 of the Constitution before Dugdale J; a recusal application was dismissed on 15th February 1993 and leave to appeal was refused on the basis that section 84 conferred no right of appeal from a final High Court determination. The respondent filed a preliminary objection that the Court of Appeal lacked jurisdiction over section 84 matters. Before the hearing, counsel for the applicant (Mr Kamau Kuria) gave notice inviting the Court to hold that Anarita Karimi Njeru v Republic No 2 was wrongly decided, relying on Dodhia v National & Grindlays Bank, Commissioner for Lands v Sheikh Mohamed Bashir and Commissioner of Income Tax v Ramesh K Menon, and requesting a Bench of five judges. Counsel for the respondent, initially supporting the preliminary objection, conceded in favour of a five-judge Bench given the indefinite adjournment of the superior court proceedings. The Court found the point to be of considerable public interest, recalled that its predecessor as final court was entitled to depart from its own judgments in the interest of justice, and directed the Chief Justice urgently to convene a Bench of five judges to hear the application and give a binding decision. Costs on the preliminary point were made costs in the application.

Key legal issues

#
01

Power of the Court of Appeal to depart from its own precedent

Holding

The Court accepted the principle, drawn from Dodhia and the authorities cited by counsel, that as the final court it may depart from its own previous judgment in the interest of justice, and that such a departure should be undertaken by a full Bench of five judges

Reasoning

Counsel for the applicant argued that two Court of Appeal decisions undermined Anarita Karimi Njeru, invoking Dodhia on the court's duty to follow the law as it finds it and Sheikh Mohamed Bashir on professional obligation to raise the point. The respondent, though initially supporting the preliminary objection, conceded a five-judge Bench should be convened given the indefinite adjournment of the superior court proceedings. The Court found the point to be of considerable public interest and declined to decide it with three judges, instead directing the Chief Justice to convene a five-judge Bench.

p. 2

Legal principles established

#
  • Where a point of considerable public interest is raised inviting the Court to depart from its previous judgment, the Chief Justice should convene a Bench of five judges to give a binding decision
  • As the final court, the predecessor Court of Appeal was entitled to depart from its own previous judgment in the interest of justice

Court orders

#
  1. 1.The Court called upon the Chief Justice, as a matter of urgency, to convene a Bench of five judges or as he may deem fit to hear the application and come up with a binding decision
  2. 2.Costs on the preliminary point to be costs in the application
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Rules of this Court (stay of proceedings) and rule 39(b) (leave to appeal); the underlying dispute arose under sections 82 and 84 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Madhupaper International Ltd v Attorney General & 5 others [1993] KECA 60 (KLR)", Case Analysis (1993). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/60/eng@1993-04-07

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