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Supreme CourtDismissedCivil Application 4 of 2014

Menginya Salim Murgani v Kenya Revenue Authority

Supreme Court of Kenya
19 December 2014
Philip Kiptoo TunoiP. K. TunoiMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguS. N. Ndungu
4,833 words in judgment
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AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from Court of Appeal judgments that were final before the 2010 Constitution.

What this practically means

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The Supreme Court refused to hear a case about a tax authority employee’s dismissal because the original Court of Appeal judgment was delivered in July 2010, before the current Constitution took effect. The Court said its jurisdiction does not cover matters that were already final under the old judicial system. Even though the worker had filed a review request, that did not keep the case alive for a Supreme Court appeal. The Court also noted that a pending review application did not create a new right of appeal. The decision confirms that the Supreme Court will not reopen old cases that were settled under the previous legal framework.

Executive summary

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The applicant, Menginya Salim Murgani, sought review of the Court of Appeal's ruling of 14 March 2014, which had declined to certify his intended appeal to the Supreme Court as one involving a matter of general public importance under Article 163(4)(b) of the Constitution. The applicant had been dismissed from employment by the Kenya Revenue Authority. The High Court found the dismissal unlawful and awarded substantial damages, but the Court of Appeal set aside that judgment on 16 July 2010, substituting a much smaller award. The applicant then filed various applications, including one for review of the Court of Appeal judgment, which was later withdrawn. He subsequently sought certification to appeal to the Supreme Court, which the Court of Appeal refused on the ground that the original judgment was delivered before the 2010 Constitution came into force. The Supreme Court dismissed the application. It held that the S. K. Macharia principle applied: the Supreme Court cannot reopen matters finalised by the Court of Appeal before the 2010 Constitution. The pending review application did not keep the matter 'live' because the Court of Appeal had no jurisdiction to review its own decisions. Although the Court acknowledged that the question of natural justice in employment relations was a matter of general public importance, this could not overcome the jurisdictional bar. The Court of Appeal ruling was upheld, and costs were awarded to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether this Court has jurisdiction to hear and determine the intended appeal, in view of the S. K. Macharia case
  2. 2.whether the matter is one of general public importance, under Article 163(4)(b) of the Constitution, and thus, on this account, merits a hearing before the Supreme Court

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal from a Court of Appeal judgment delivered before the 2010 Constitution, where a review application was pending at the time of promulgation.

Holding

The Supreme Court lacks jurisdiction because the rights of the parties were finally determined by the Court of Appeal, which was the apex court at the time, and the pending review application did not keep the matter alive.

Reasoning

The Court held that the Court of Appeal judgment of 16 July 2010 was a final determination of the parties' rights. The subsequent application for review did not create a new right of appeal to the Supreme Court, as the right of appeal accrued from the date of the original judgment, not from the date the review was rejected. The Court of Appeal had no jurisdiction to review its own decisions, so the pending application was a nullity and did not keep the matter 'live'. The S. K. Macharia principle therefore applied, barring the Supreme Court from reopening matters finalised before the 2010 Constitution.

p. 9
02

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b) of the Constitution.

Holding

Although the question of natural justice in employment relations is a matter of general public importance, the application cannot succeed because the jurisdictional bar under S. K. Macharia has not been distinguished.

Reasoning

The Court acknowledged the Court of Appeal's observation that the interplay between natural justice and disciplinary proceedings in employment relations, especially involving a state agency, is a matter of general public importance. However, the Court held that this finding was irrelevant because the jurisdictional issue under S. K. Macharia was dispositive. The Supreme Court cannot entertain the appeal regardless of its importance, as the judgment below was delivered before the 2010 Constitution.

p. 11

Legal principles established

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  • The Supreme Court lacks jurisdiction over appeals from Court of Appeal judgments that were final before the 2010 Constitution.
  • A pending application for review of a Court of Appeal judgment does not keep the matter 'live' for Supreme Court jurisdiction.
  • The right of appeal to the Supreme Court accrues from the date of the original judgment, not from the date a review is rejected.
  • The Court of Appeal had no jurisdiction to review its own decisions, so a pending review application was a nullity.
  • Even if a case involves a matter of general public importance, that cannot overcome the jurisdictional bar for pre-2010 judgments.

Court orders

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  1. 1.The Notice of Motion dated March 18, 2014 is hereby disallowed.
  2. 2.The Ruling of the Court of Appeal dated March 14, 2014 is hereby upheld.
  3. 3.The costs of this application shall be borne by the applicant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No. Sup. 4 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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setting aside the decision of the Court of Appeal in Civil Application No. Sup. 4 of 2013

The Supreme Court lacks jurisdiction to entertain appeals from Court of Appeal decisions rendered before the promulgation of the 2010 Constitution, as established in S. K. Macharia.

p. 11

Costs

The costs of this application shall be borne by the applicant.

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 Notice of Motion dated March 18, 2014 is hereby disallowed.
p. 11 final orders
The Ruling of the Court of Appeal dated March 14, 2014 is hereby upheld.
p. 11 final orders
The costs of this application shall be borne by the applicant.
p. 11 costs order
The Court will not reopen matters that were finalised under the valid judicial structures in place before the promulgation of the Constitution 2010.
p. 8 jurisdiction of the Supreme Court
If there was a right of appeal from the decision of this Court given on 16th July 2010, that right accrued from the date of delivery of that judgment, and not from the date when revision of that judgment was rejected.
p. 8 right of appeal

Key timeline

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16 July 2010
Court of Appeal delivers judgment setting aside High Court award and substituting a smaller one for the dismissed employee.
27 August 2010
New Constitution of Kenya promulgated, establishing Supreme Court as final court of appeal.
2010-2014
Applicant files various applications, including a review of the Court of Appeal judgment, which is later withdrawn.
14 March 2014
Court of Appeal refuses to certify the case as one of general public importance for appeal to Supreme Court.
18 March 2014
Applicant files notice of motion in Supreme Court seeking review of the Court of Appeal ruling.
Judgment date
Supreme Court disallows the motion, upholds Court of Appeal ruling, and orders applicant to pay costs.

Practical implications

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For lawyers

Jurisdictional deadlines for appeals

When advising clients on appeals to the Supreme Court, check whether the Court of Appeal judgment was delivered before the 2010 Constitution came into force. If it was, the Supreme Court will not entertain the appeal – even if a review application was pending. The right of appeal is determined by the date of the original judgment, not the date of any subsequent review ruling. This case reinforces strict application of the S.K. Macharia principle.

For businesses

Finality of pre-2010 court decisions

Any court judgment against your business that was handed down by the Court of Appeal before August 2010 is now final and cannot be reopened in the Supreme Court. This applies even if you later filed a request for review. Business disputes that were settled under the old judicial hierarchy are effectively closed. Ensure your legal team reviews the timing of any old judgments and does not rely on pending review applications to extend appeal windows.

For individuals

No second chance for old cases

If you lost a case in the Court of Appeal before the 2010 Constitution, you cannot appeal to the Supreme Court – even if you think the case is very important. A pending request for review does not keep your case alive. This case shows that the Supreme Court will not step in to reopen old decisions. If you are in a similar situation, explore other remedies like constitutional petitions or alternative dispute resolution, but do not rely on a Supreme Court appeal.

Frequently asked questions

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Can I appeal to the Supreme Court of Kenya if my Court of Appeal judgment was from 2009?+

No, according to this case, the Supreme Court lacks jurisdiction to hear appeals from Court of Appeal judgments that were final before the 2010 Constitution took effect. The judgment in 2009 was final under the old judicial system, and the Supreme Court cannot reopen it.

What happens if I filed a review application after a Court of Appeal judgment in 2010 – does that keep my case alive for Supreme Court appeal?+

No. The Supreme Court held that a pending review application does not keep the matter 'live' for purposes of its jurisdiction. The right of appeal accrues from the date of the original judgment, not from the date the review is rejected. If the original judgment was before the 2010 Constitution, the Supreme Court cannot hear it.

Can the Supreme Court hear a case that involves a matter of general public importance even if it is from before 2010?+

No. Even if the case raises an important issue like natural justice in employment, the Supreme Court cannot hear it if the original Court of Appeal judgment was delivered before the 2010 Constitution. The jurisdictional bar overrides the importance of the issue.

What is the S.K. Macharia principle in Kenya’s Supreme Court?+

The S.K. Macharia principle states that the Supreme Court cannot reopen matters that were finalised under the valid judicial structures in place before the 2010 Constitution. This means any Court of Appeal judgment delivered before 27 August 2010 is final and cannot be appealed to the Supreme Court.

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, "Menginya Salim Murgani v Kenya Revenue Authority", Case Analysis (2014). Civil Application 4 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/2/eng@2014-12-19

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