Joshua Sembei Mutua v The Attorney General & 2 others

The Court accepted that section 49 does not expressly state the orders RBAT may issue, but held that RBAT's jurisdiction to hear appeals from RBA flows from sections 47 and 48. Section 52 provides that until CJ rules are made, the CPA applies as if the matter were a decree of a subordinate court. Section 78 of the CPA and Order 42 rules 31 and 32 of the CPR confer on an appellate court power to determine a case finally, vary or reverse decrees, and pass any order that ought to have been made. These provisions apply mutatis mutandis to RBAT as express, not implied, power.

The Court endorsed Child Welfare Society of Kenya, which followed the Supreme Court in Communication Commission of Kenya v Royal Media Services and IEBC v NASA, holding that common law judicial review remedies are now fused into constitutional and statutory remedies, giving Kenya one integrated system of judicial review. The parties were agreed on the traditional view, but the Court stated the constitutional position is the current view. The High Court's merits-based holding that RBAT's decision on the applicable rules was a merit decision amenable to appeal, not review, was not disturbed as there was no cross-appeal.

The Court recited the classic Madan, JA formulation from United India Insurance v East African Underwriters as the governing standard. It then applied the statutory-construction analysis to the central jurisdiction question and concluded the trial judge's construction of section 49 was untenable, warranting setting aside his orders while upholding RBAT's decision.