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Supreme CourtDismissedPetition 16 of 2020

Kenya Hotel Properties Limited v Attorney General & 5 others

Supreme Court of Kenya
7 October 2022
Martha Karambu KoomeM.K. KoomeSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
9,209 words in judgment
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·~37 min to read original · ~4 min brief

The bottom line

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Supreme Court: High Court cannot reopen Court of Appeal cases, even if a judge was later removed.

What this practically means

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The Supreme Court ruled that the High Court has no power to reopen or annul a decision made by the Court of Appeal. Even if one of the judges was later removed for unsuitability, that does not automatically make the judgment invalid, especially when the decision was unanimous. Once a case is finally decided by the highest court at the time, it cannot be reopened through a constitutional petition in a lower court. Litigation must come to an end.

Executive summary

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The Supreme Court dismissed an appeal by Kenya Hotel Properties Limited against the Court of Appeal's decision affirming the High Court's dismissal of its constitutional petition. The dispute originated from a land ownership case where the 4th respondent, Willesden Investments Ltd, had obtained judgment for mesne profits and damages against the appellant in HCCC No 367 of 2000. The appellant's appeal to the Court of Appeal in Civil Appeal No 149 of 2007 was partially successful, reducing the award. Years later, the appellant sought to have that Court of Appeal judgment annulled after one of the judges, Justice O'Kubasu, was removed by the Judges and Magistrates Vetting Board for unsuitability. The appellant filed a constitutional petition before the High Court seeking declarations that the judgment was a nullity due to bias, orders of certiorari to quash it, and directions for a de novo hearing. The High Court dismissed the petition for lack of jurisdiction under Article 165(6) of the Constitution, which prohibits the High Court from supervising superior courts. The Court of Appeal affirmed this decision. The Supreme Court upheld both lower courts, holding that the High Court cannot annul or direct the Court of Appeal, a superior court. The Court further held that the Vetting Board's removal of a judge does not automatically nullify judgments delivered by that judge, especially where the judgment was unanimous and the other judges were not impugned. The Court emphasized the principle of finality in litigation, noting that the matter had been conclusively determined. The appeal was dismissed with each party bearing 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 High Court had the jurisdiction to grant reliefs sought by the appellant
  2. 2.If not, what other remedies are available to the appellant?

Key legal issues

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01

Whether the High Court had jurisdiction to annul a judgment of the Court of Appeal and order a de novo hearing.

Holding

The High Court lacks jurisdiction to supervise or annul decisions of the Court of Appeal, as Article 165(6) of the Constitution limits its supervisory jurisdiction to subordinate courts and bodies, not superior courts.

Reasoning

The Supreme Court affirmed the concurrent findings of the High Court and Court of Appeal that Article 165(6) expressly prohibits the High Court from supervising superior courts. The Court of Appeal is a superior court under Article 162(1), and its decisions bind the High Court under Article 164(3). Granting the orders sought would undermine judicial hierarchy and the rule of law. The Court rejected the appellant's argument that fundamental rights override jurisdictional limits, holding that 'rights can only be adjudicated upon by properly authorized courts' and that a declaration by a court without jurisdiction is a nullity.

p. 16
02

Whether the removal of a judge by the Judges and Magistrates Vetting Board automatically nullifies judgments delivered by that judge.

Holding

The removal of a judge by the Vetting Board does not automatically nullify judgments delivered by that judge, especially where the judgment was unanimous and the other judges were not impugned.

Reasoning

The Supreme Court held that the Vetting Board's finding of 'a worrying lack of capacity' did not amount to a finding of bias. The judgment in Civil Appeal No 149 of 2007 was a unanimous decision of three judges, and the appellant did not challenge the other two judges. The Court emphasized that Vetting Board decisions cannot be elevated to 'supra-judicial pronouncements' that set aside every decision made by a removed judge. The proper remedy for a litigant alleging violation of fundamental rights by a court decision is to file a constitutional petition before the High Court seeking redress, not to seek annulment of the decision itself.

p. 17
03

Whether the principle of finality in litigation bars the re-opening of a concluded appeal through a constitutional petition.

Holding

The principle of finality in litigation bars the re-opening of a concluded appeal through a constitutional petition before an inferior court.

Reasoning

The Supreme Court noted that Civil Appeal No 149 of 2007 was conclusively determined on April 2, 2009, and the review judgment on November 20, 2009. The appellant had exhausted its appellate remedies. Allowing the appellant to attack the Court of Appeal judgment through a constitutional petition before the High Court would be 'subversive to the principle of rule of law.' The Court cited its earlier decision in Samuel Kamau Macharia v Kenya Commercial Bank Limited, which declared section 14 of the Supreme Court Act unconstitutional for attempting to confer jurisdiction to review final decisions of removed judges. The Court held that litigation must come to an end.

p. 18

Legal principles established

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  • The High Court cannot supervise or annul decisions of the Court of Appeal under Article 165(6) of the Constitution.
  • Removal of a judge by the Vetting Board does not automatically nullify that judge's past unanimous judgments.
  • The principle of finality in litigation bars reopening concluded appeals through constitutional petitions in inferior courts.
  • Fundamental rights can only be adjudicated by courts with proper jurisdiction; a declaration by a court without jurisdiction is a nullity.
  • A litigant alleging rights violations by a court decision must file a constitutional petition for redress, not seek annulment of the decision.

Court orders

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  1. 1.The petition of appeal dated and filed on August 28, 2020 is hereby dismissed.
  2. 2.Each party shall bear its costs.

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

Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 404 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that the Court of Appeal judgment dated April 2, 2009 in Civil Appeal No 149 of 2007 is a nullity and should be set aside

The High Court lacks jurisdiction to supervise or annul decisions of the Court of Appeal, a superior court.

p. 16

Declaration that the appellant's right to a fair trial under article 50 was infringed by bias of O'Kubasu JA

The Vetting Board did not find bias but 'a worrying lack of capacity'; the judgment was unanimous and the other two judges were not impugned.

p. 6

Order of certiorari to quash the Court of Appeal judgment in Civil Appeal No 149 of 2007

The High Court cannot issue certiorari against a superior court's decision.

p. 6

Order directing that the appeal be heard de novo by the Court of Appeal

The High Court cannot direct the Court of Appeal to re-open a concluded appeal.

Permanent injunction restraining execution of the decree in HCCC No 367 of 2000

The High Court lacked jurisdiction to grant any of the reliefs sought; the matter was finally determined.

p. 18

Costs

Each party shall bear its costs.

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.

the High Court cannot and does not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time.
p. 16 Jurisdiction of the High Court
the decisions by the Vetting Board cannot and should not be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a judge who was removed for impropriety.
p. 17 Effect of Vetting Board decisions
the principle of finality in litigation is relevant, more so in this appeal. There must be an end to litigation
p. 18 Finality of litigation
The petition of appeal dated and filed on August 28, 2020 is hereby dismissed.
p. 18 Final orders
Each party shall bear its costs.
p. 18 Costs order
rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.
p. 15 Jurisdiction and fundamental rights

Key timeline

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2009-04-02
Court of Appeal decides Civil Appeal No 149 of 2007, partially reducing the award against Kenya Hotel Properties.
2009-11-20
Court of Appeal issues review judgment, confirming its earlier decision.
After 2010
Justice O'Kubasu, one of the judges in the appeal, is removed by the Judges and Magistrates Vetting Board.
Unknown
Kenya Hotel Properties files a constitutional petition in the High Court seeking to annul the Court of Appeal judgment.
Unknown
High Court dismisses the petition for lack of jurisdiction; Court of Appeal affirms.
2020-08-28
Kenya Hotel Properties files a petition of appeal to the Supreme Court.
2022
Supreme Court dismisses the appeal, upholding the lower courts.

Practical implications

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For lawyers

Jurisdiction limits for constitutional petitions

Do not advise clients to file constitutional petitions in the High Court to reopen concluded Court of Appeal judgments. The High Court lacks jurisdiction to supervise superior courts. Instead, if fundamental rights were violated during the appeal, pursue a separate claim for damages or other redress, not annulment of the judgment.

For businesses

Finality of court decisions protects you

Once a land or commercial dispute is finally decided by the Court of Appeal, that decision stands. Opponents cannot later attack it by claiming a judge was biased or unsuitable, especially if the judgment was unanimous. This ruling protects businesses from endless litigation and gives certainty to concluded cases.

For individuals

Judge removal doesn't void your case

If a judge who decided your case is later removed for misconduct, that does not automatically overturn the judgment. The decision remains valid unless you can show actual bias that affected the outcome. You cannot use the Vetting Board's findings as a shortcut to reopen a final court decision.

Frequently asked questions

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Can the High Court reopen a Court of Appeal case in Kenya?+

No. The Supreme Court confirmed that the High Court has no jurisdiction under Article 165(6) of the Constitution to supervise or annul decisions of the Court of Appeal. Once the Court of Appeal decides a case, it cannot be reopened in the High Court.

Does a judge's removal nullify their past judgments in Kenya?+

Not automatically. The Supreme Court held that removal of a judge by the Judges and Magistrates Vetting Board does not void judgments they delivered, especially if the decision was unanimous and the other judges were not impugned.

What is the principle of finality in litigation in Kenya?+

It means that once a case has been conclusively determined by the highest court at the time, it cannot be reopened. The Supreme Court emphasized that litigation must come to an end, and reopening appeals through constitutional petitions undermines the rule of law.

How can I challenge a Court of Appeal judgment in Kenya after it is final?+

You cannot challenge it by filing a constitutional petition in the High Court. If you believe your fundamental rights were violated during the appeal, you may seek separate redress (e.g., damages) but not annulment of the judgment. The proper remedy is to appeal to the Supreme Court if grounds exist.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Hotel Properties Limited v Attorney General & 5 others", Case Analysis (2022). Petition 16 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/62/eng@2022-10-07

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