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Supreme CourtDismissedApplication 2 of 2011

Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others

Supreme Court of Kenya
23 October 2012
Willy MutungaW.M. MutungaPhilip Kiptoo TunoiP.K. TunoiJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
12,514 words in judgment
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The bottom line

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The Supreme Court cannot hear appeals from cases finalized before the 2010 Constitution took effect.

What this practically means

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The Supreme Court ruled that it can only hear appeals from cases decided after the 2010 Constitution came into force. It also struck down a law that tried to give it extra powers beyond what the Constitution allows. Only two types of cases can be appealed to the Supreme Court: those involving constitutional interpretation and those certified as matters of general public importance. This means people who lost cases before 2010 cannot use the Supreme Court to reopen them.

Executive summary

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This was an application for leave to appeal against a 2008 Court of Appeal judgment that had reversed a High Court award of KShs 129 million to the applicants for restitution based on duress and coercion. The application was brought under Article 163 of the Constitution and Sections 14-16 of the Supreme Court Act. The Supreme Court dismissed the application on multiple grounds. First, the Court held that Article 163(4)(b) is forward-looking and does not confer appellate jurisdiction to entertain matters finalized by the Court of Appeal before the Constitution of Kenya 2010 came into force, as doing so would divest vested rights. Second, the Court declared Section 14 of the Supreme Court Act unconstitutional insofar as it purports to confer 'special jurisdiction' upon the Supreme Court beyond the limits set by Article 163 of the Constitution. Third, the Court held that the special jurisdiction under Section 14 is not appellate in nature, and an application for leave to appeal cannot be grounded on it. Fourth, the Court affirmed the principle that only two types of appeal lie from the Court of Appeal to the Supreme Court: as of right in constitutional interpretation cases, and in cases certified as involving a matter of general public importance. The Court also held that applications for certification under Article 163(4)(b) should originate in the Court of Appeal. On the joinder issue, the Court found that the opposition based on Section 241(1) of the Companies Act was a procedural technicality that could not defeat the application in the circumstances. The Court dismissed the application 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 first applicant needed to obtain leave of the Court before joining the second applicant in these proceedings and if so, whether failure to apply and obtain such leave is so fatal as to render this application untenable?
  2. 2.whether the facts as deponed in this application by the first applicant and all surrounding circumstances meet the threshold set out in Section 14 of the Supreme Court Act so as to bring the application within the ambit of the Court’s special jurisdiction?
  3. 3.whether the special jurisdiction under Section 14 is appellate in nature and therefore one of the categories of appeal contemplated by Article 163 (4) of the Constitution?
  4. 4.whether the Supreme Court has jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010?
  5. 5.are sections 15 and 16 of the Supreme Court Act intended to operate retrospectively?
  6. 6.whether the Supreme Court has jurisdiction to hear applications for leave to appeal?
  7. 7.whether Section 14 of the Supreme Court Act is unconstitutional?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to entertain appeals from cases finalized by the Court of Appeal before the Constitution of Kenya 2010 came into force.

Holding

The Supreme Court lacks such jurisdiction; Article 163(4)(b) is forward-looking and does not apply retrospectively to divest vested rights.

Reasoning

The Court held that a final judgment by the highest court at the time vested certain property rights and obligations in the parties. Allowing appeals from such finalized cases would trigger turbulence in private legal relations. The Constitution does not contain express words or necessary implication for retrospective application of appellate jurisdiction. The South African case of Du Plessis v De Klerk was cited as persuasive authority that a new constitution cannot be invoked to deprive a person of property rights that lawfully vested before its commencement.

p. 24
02

Whether Section 14 of the Supreme Court Act is constitutional.

Holding

Section 14 of the Supreme Court Act is unconstitutional insofar as it purports to confer 'special jurisdiction' upon the Supreme Court beyond the limits set by the Constitution.

Reasoning

The Court reasoned that Article 163 of the Constitution exhaustively provides for the jurisdiction of the Supreme Court. Article 163(9) only contemplates an Act that is operational in nature, to augment Rules made by the Court for regulating the exercise of its jurisdiction. Such an Act cannot create and confer jurisdiction beyond constitutional limits. Section 14 purports to confer a special review jurisdiction that is not appellate in nature and is not anchored in Article 163, making it unconstitutional.

p. 25
03

Whether the special jurisdiction under Section 14 of the Supreme Court Act is appellate in nature.

Holding

The special jurisdiction under Section 14 is not appellate in nature; 'review' and 'appeal' are distinct concepts and cannot be used interchangeably.

Reasoning

The Court distinguished between appeal and review, noting that an appeal is granted by the Constitution or statute and entails reconsideration by a higher court with a view to reversing or affirming a decision. Review, on the other hand, typically vests in the High Court to correct irregularities or errors apparent on the face of the record. Section 14 confers powers inconsistent with appellate jurisdiction, including the power to act suo motu, conduct preliminary enquiries, and call for evidence. Therefore, an application for leave to appeal cannot be grounded on Section 14.

p. 20
04

Whether the first applicant needed leave of the Court before joining the second applicant (a company in liquidation) to these proceedings.

Holding

The opposition based on Section 241(1) of the Companies Act fails; the requirement is a procedural technicality that does not apply in the circumstances of this case.

Reasoning

The Court noted that the first applicant is not seeking to commence proceedings but to continue proceedings that began before the winding-up order. The respondents are no longer debenture-holders and have no interest in the affairs of the second applicant. The application is for leave to appeal, not the substantive appeal. Applying Article 159(2)(d) of the Constitution, the Court held that the requirement of prior sanction is a procedural technicality that should not defeat the application.

p. 18

Legal principles established

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  • Article 163(4)(b) of the Constitution applies only to cases decided after the 2010 Constitution and not to earlier ones.
  • Section 14 of the Supreme Court Act is unconstitutional because it tries to give the Supreme Court powers not allowed by the Constitution.
  • Only two types of appeals can go from the Court of Appeal to the Supreme Court: constitutional interpretation cases and certified public importance cases.
  • Anyone seeking certification to appeal to the Supreme Court must first apply to the Court of Appeal, not the Supreme Court.
  • A final judgment from before the 2010 Constitution creates vested rights that cannot be disturbed by the new Constitution.

Court orders

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  1. 1.We dismiss this application
  2. 2.each party shall bear its own costs

The bench

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

Willy Mutunga
majority

Wrote the judgment

Philip Kiptoo Tunoi
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 181 of 2004
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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Leave to appeal against the judgment of the Court of Appeal

The Supreme Court lacks jurisdiction to entertain appeals from cases finalized by the Court of Appeal before the commencement of the Constitution of Kenya 2010.

p. 24

Costs

each party shall bear its own 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.

We hold that Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.
p. 24 Retrospectivity of appellate jurisdiction
We hold that Section 14 of the Supreme Court Act is unconstitutional insofar as it purports to confer 'special jurisdiction' upon the Supreme Court, contrary to the express terms of the Constitution.
p. 25 Constitutionality of Section 14 of the Supreme Court Act
only two types of appeal lie from the Court of Appeal to the Supreme Court under the Constitution.
p. 21 Types of appeal to the Supreme Court
those seeking certification to appeal from the Court of Appeal on the basis of Article 163 (4)(b) have to originate their applications in that Court.
p. 22 Procedure for certification of general public importance
We dismiss this application and order that each party shall bear its own costs.
p. 25 Final orders

Key timeline

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2008
Court of Appeal delivers a final judgment in a case involving the applicants.
2010-08-27
The Constitution of Kenya 2010 is promulgated, establishing the Supreme Court.
Not specified
The applicants file an application for leave to appeal to the Supreme Court, relying on Section 14 of the Supreme Court Act.
Judgment date not provided
The Supreme Court dismisses the application, holding that it lacks jurisdiction because the case was finalized before the Constitution and that Section 14 is unconstitutional.

Practical implications

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For lawyers

Check jurisdiction timing carefully

When advising clients on appeals to the Supreme Court, verify whether the Court of Appeal judgment was delivered before or after 27 August 2010. If before, no appeal lies to the Supreme Court under Article 163(4)(b). Also, do not rely on Section 14 of the Supreme Court Act for special jurisdiction—it has been declared unconstitutional. The only routes are as-of-right appeals on constitutional interpretation or certified public importance matters, and certification must be sought from the Court of Appeal first.

For businesses

Pre-2010 judgments are final

If your business obtained a final judgment from the Court of Appeal before August 2010, that judgment is now secure from being reopened by the Supreme Court. The Supreme Court has no power to hear appeals from such cases. This protects vested rights and property interests that were finalized under the old legal system. Be aware that any attempt to use the Supreme Court to challenge such a judgment will be dismissed.

For individuals

Your vested rights are protected

If you were involved in a case that ended in the Court of Appeal before the 2010 Constitution, you cannot be dragged back to court by the Supreme Court. The new Constitution does not allow reopening old final decisions. This means you can rely on the outcome of that case without fear of it being overturned by the Supreme Court. However, if your case involves a constitutional issue or is certified as important, you may still appeal, but only if the Court of Appeal decision came after 2010.

Frequently asked questions

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Can I appeal to the Supreme Court in Kenya if my case was decided before the 2010 Constitution?+

No. The Supreme Court has ruled that it cannot hear appeals from cases that were finalized by the Court of Appeal before the Constitution of Kenya 2010 took effect on 27 August 2010. Such judgments are considered final and cannot be reopened.

What is the jurisdiction of the Supreme Court in Kenya?+

The Supreme Court can only hear two types of appeals from the Court of Appeal: cases that involve the interpretation or application of the Constitution (appeal as of right), and cases that the Court of Appeal has certified as involving a matter of general public importance.

Is Section 14 of the Supreme Court Act still valid in Kenya?+

No. The Supreme Court declared Section 14 of the Supreme Court Act unconstitutional. It tried to give the Supreme Court a special review jurisdiction that goes beyond what the Constitution allows. That section cannot be used to ask for leave to appeal or to bring any case to the Supreme Court.

How do I get my case certified for appeal to the Supreme Court in Kenya?+

You must apply to the Court of Appeal for certification that your case involves a matter of general public importance. You cannot go directly to the Supreme Court for certification. The Supreme Court has no power to grant such certification itself.

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, "Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others", Case Analysis (2012). Application 2 of 2011. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2012/8/eng@2012-10-23

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