SGS Kenya Limited v Energy Regulatory Commission & 2 others [2018] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal allowed SGS Kenya to take a tribunal precedent question to the Supreme Court, but refused to halt the tender process while that appeal proceeds.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal raises matters of general public importance warranting certification and leave to appeal to the Supreme Court
- 2.Whether Tribunals such as the Public Procurement Administrative Review Board are bound by their prior decisions according to the doctrine of precedent (stare decisis)
- 3.Whether failure, without providing reasons, by quasi-judicial bodies to abide by or distinguish their prior decisions is an irrational exercise of their mandate
- 4.Whether the Court of Appeal has jurisdiction to stay its own judgment pending certification and an intended appeal to the Supreme Court
- 5.Whether stay of the re-advertised tender process should be granted
Key legal issues
#Whether certification and leave to appeal to the Supreme Court should be granted on the two questions concerning the doctrine of precedent and quasi-judicial tribunals
Certification granted. The question whether tribunals such as the Public Procurement Administrative Review Board are bound by their prior decisions, and whether failure to give reasons for departing from them is irrational, are matters of general public importance transcending the parties' interests and fit for the Supreme Court.
Applying the Steyn and KPAWU principles, the Court found the issues transcend the particular case and bear on the public interest. It noted that whether tribunals are bound by stare decisis is debatable and unsettled in Kenya. Although the issue of Article 47 could not be certified because it was never litigated below, the two narrow questions identified by the applicant were properly before the Court and befit the Supreme Court's determination.
Whether the Court of Appeal can stay its own judgment pending an intended appeal to the Supreme Court
It cannot. Once the Court of Appeal delivers final judgment it becomes functus officio, absent statutory authority; the proper forum for stay is the Supreme Court.
The Court relied on its own decision in Dickson Muricho Muriuki, reasoning that the functus officio principle is grounded on public policy favouring finality of proceedings. It also noted the second stay limb was flawed in targeting a different tender number from that litigated, and that an appellate court has no original jurisdiction to stay a tender award.
Whether Article 163(4) jurisdiction of the Supreme Court may be founded on Article 47 and the Fair Administrative Action Act where those provisions were never litigated below
No. The mere clothing of an intended appeal as a question of constitutional interpretation or application does not confer jurisdiction; issues not canvassed in the courts below cannot ground a Supreme Court appeal.
The Court observed that Article 47 and the Fair Administrative Action Act were not subjects of interpretation or litigation before the High Court or Court of Appeal, citing Peter Oduor Ngoge and Hassan Ali Joho on the requirement that issues undergo examination in all lower courts, and Rutongot Farm on the limits of constitutional clothing.
Legal principles established
#- After the Court of Appeal pronounces final judgment it is functus officio and has no jurisdiction to stay its own judgment pending certification and an intended appeal to the Supreme Court; any such application for stay must be made to the Supreme Court.
- An issue that was neither canvassed before nor determined by the High Court or the Court of Appeal cannot become a matter of general public importance warranting the Supreme Court's appellate jurisdiction under Article 163(4)(b).
Court orders
#- 1.Leave granted to the applicant to move to the Supreme Court in the intended appeal against the judgment of the Court of Appeal in Civil Appeal No. 341 of 2017 delivered on 11th May 2018, specifically on the two certified questions
- 2.No stay order granted; both limbs of the stay application declined
- 3.Each party to bear its own costs in this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification and leave to appeal to the Supreme Court); inherent/appellate jurisdiction of the Court of Appeal over stay of its own judgment
Relief refused
#Stay of enforcement of the Court of Appeal judgment of 11th May 2018 pending hearing of the application
The stay was sought only pending hearing of the certification application, which has now been heard and determined; the limb is spent
Stay of the re-advertisement and tender process for Tender Number ERC/PROC/4/3/17-19/016 pending the intended appeal
The Court is functus officio after delivery of its judgment and the proper forum for stay is the Supreme Court; further, the tender number cited was not the tender in litigation and this Court has no original jurisdiction over the tender
Costs
Each party to bear its own costs in this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In principle, it is only courts of record that are bound by the doctrine of precedent. However, it is debatable whether Tribunals are similarly bound by the doctrine.
Leave be and is hereby granted to the applicant to move to the Supreme Court in the intended appeal against the judgment of this Court in Civil Appeal No. 341 of 2017 delivered on 11th May 2018.
No stay order is granted.
Each party to bear its own costs in this application.
Accordingly, we decline to grant stay orders as we re-affirm that this Court becomes functus officio after pronouncement and delivery of its judgment. Any application for stay of a judgment of this Court should be made before the Supreme Court.
Issues in the judgment
#The judgment refers to Republic vs. Kenyatta University as persuasive and appears to quote it, but the quotation block is attributed in a manner that leaves ambiguity whether the Court adopted or merely noted it; it is recorded as noted (cited_by_party) to be safe.
The applicant's grounds invoke Article 163(4)(a) of the Constitution while the Court's analysis and conclusion are framed under Article 163(4)(b); the certification actually granted appears to rest on Article 163(4)(b).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SGS Kenya Limited v Energy Regulatory Commission & 2 others [2018] KECA 39 (KLR)", Case Analysis (2018). Civil Application No. SUP. 167 of 2018 (UR 136/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/39/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.