Kenya Hotel Properties Limited v Attorney General & 5 others
The bottom line
#The Court of Appeal confirmed that Kenyan courts cannot reopen its own concluded judgments, even where a judge was later removed from office.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court could entertain a petition seeking to nullify a Court of Appeal judgment
It could not; the High Court cannot supervise superior courts, and any declaration by a court without jurisdiction is a nullity.
Article 165(6) expressly confines the High Court's supervisory jurisdiction to subordinate courts. In a hierarchical system, the High Court cannot quash, annul or reverse the decision of its elder sibling, nor direct the Court of Appeal to reopen a concluded appeal. The learned Judge correctly declined jurisdiction, and once jurisdiction was found wanting it was proper for him not to pronounce on the merits, since any such pronouncement would be futile and a nullity.
Whether removal of O'Kubasu JA by the Vetting Board rendered Civil Appeal No. 149 of 2007 void for judicial bias
No. The Vetting Board made no finding of bias; unsuitability for office is not equivalent to bias, and the judgment was that of a three-judge bench.
The Board's determination rested on more than this one appeal and found a lack of capacity for objective reasoning, not bias. No application for recusal was ever made. The Vetting Board's decision, being neither a judicial pronouncement nor by a superior body, could not bind the Court in a judicial adjudicatory sense. Holding vetted-out judges' judgments void would unsettle the jurisprudence of the Court and undermine numerous judgments.
Whether a second application for review of a concluded appeal is competent
It is not. Review of this Court's decisions is exceptional, constricted, and there can be no second review of a judgment already reviewed.
The review jurisdiction is not even provided for in the Court's rules and is exercised sparingly under inherent powers, confined to the parameters identified in Manchester Outfitters. Allowing parties to relitigate concluded appeals through endless reviews would make a travesty of the Court's appellate character and strike a fatal blow at the doctrine of finality. The appellant had already had one review determined on the merits.
Whether the learned Judge erred in not pronouncing on the merits after finding want of jurisdiction
He did not err; a court without jurisdiction must down tools immediately.
Once the Judge found he lacked jurisdiction, the logical course was to make no findings on the merits. It would defeat the meaning of want of jurisdiction for a judge to pronounce on matters he is not authorised to pronounce upon; such pronouncement would be futile and a nullity. The Owners of the Motor Vessel Lillian's v Caltex Oil establishes that jurisdiction is everything and a court downs tools the moment it finds it lacks jurisdiction.
Legal principles established
#- The High Court has no supervisory jurisdiction over superior courts and cannot quash, annul, set aside or direct a rehearing of a Court of Appeal judgment
- Court of Appeal decisions bind the High Court and all courts equal or inferior to it
- There is no right of second review of a judgment of the Court of Appeal; review is exceptional and to be sparingly exercised
- Judgments of judges later removed through the vetting process are not ipso facto null and void; removal by the Vetting Board does not, without a finding of bias, vitiate the judgments they participated in
Court orders
#- 1.The appeal is dismissed
- 2.The application for review in Civil Appeal No. 149 of 2007 is dismissed
- 3.Costs to the respondents
- On appeal from
- High Court of Kenya, Constitutional & Human Rights Division
- Constitutional Petition filed 16th October 2015 (before Chacha Mwita, J)
- Jurisdiction invoked
- Appeals from the High Court under Article 164(3) of the Constitution; the judgment also turns on Article 165(6) (High Court's lack of supervisory jurisdiction over superior courts)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Company Limited & another (Interested Parties); Njarama (Exparte Applicant) (Judicial Review E013 of 2024) [2025] KEELRC 1984 (KLR)[2025] KEELRC 1984 (KLR)13 Jun 2025applied
- Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Company Limited & another (Interested Parties); Muthendu (Exparte Applicant) (Judicial Review E012 of 2024) [2025] KEELRC 1703 (KLR)[2025] KEELRC 1703 (KLR)13 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotel Properties Limited v Attorney General & 5 others", Case Analysis (2020). Civil Appeal (arising from Constitutional Petition, High Court Constitutional & Human Rights Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/427/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.