Wafula v Director of Public Prosecutions & 149 others
The bottom line
#Supreme Court upholds Registrar's power to reject non-compliant appeals before Court of Appeal decides.
What this practically means
#The Supreme Court dismissed an application from Benjamin Barasa Wafula, who tried to appeal a case that the Court of Appeal had not yet decided. The Deputy Registrar had refused to accept his petition because it did not follow the Supreme Court's rules. The judge agreed, saying the Supreme Court cannot step in before the Court of Appeal makes a final decision. The applicant must first get a proper ruling from the Court of Appeal before coming to the Supreme Court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Deputy Registrar erred in declining to lodge the applicant's pleadings
- 2.Whether the Court of Appeal's decision to remove the applicant's appeal from the hearing list constituted a determination warranting the Supreme Court's intervention under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the Deputy Registrar erred in declining to lodge the applicant's pleadings.
The Deputy Registrar did not err; she properly exercised her discretion because the petition was not framed in compliance with the Supreme Court Rules, 2020 and the Court of Appeal had not made a determination to warrant the Supreme Court's intervention.
The court reviewed the Deputy Registrar's ruling and found that the petition was not framed in the manner prescribed by the court's rules. Additionally, the Court of Appeal's decision to remove the applicant's appeal from the hearing list did not constitute a determination under Article 163(4)(b) of the Constitution. The court affirmed the Deputy Registrar's decision, citing the principle from Okiya Omtatah Okoiti v Attorney General that the Registrar may decline non-compliant pleadings, and from Teachers Service Commission v Kenya National Union of Teachers that the Supreme Court should not prematurely involve itself in matters still pending before the Court of Appeal.
Whether the Court of Appeal's action of removing the applicant's appeal from the hearing list constituted a determination warranting the Supreme Court's intervention under Article 163(4)(b) of the Constitution.
The Court of Appeal's action did not constitute a determination, and therefore the Supreme Court's jurisdiction under Article 163(4)(b) was not properly invoked.
The court agreed with the Deputy Registrar's finding that the decision of the Court of Appeal to take out the applicant's appeal from the hearing list did not amount to a determination. The court further noted that the appeal before the Court of Appeal was yet to be heard and determined, and any early involvement by the Supreme Court would be premature and prejudicial.
Legal principles established
#- The Registrar can reject pleadings that do not follow the Constitution, Supreme Court Act, rules, or practice directions.
- A person whose pleadings are rejected can ask a single Supreme Court judge to review that decision, and the judge's ruling is final.
- The Supreme Court will not hear a case before the Court of Appeal has made a final determination on it.
- Removing an appeal from the hearing list does not count as a 'determination' that allows Supreme Court intervention.
Court orders
#- 1.The notice of motion dated November 16, 2022 and filed on November 21, 2022 is hereby dismissed.
- 2.Parties shall bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya (Deputy Registrar)
- Jurisdiction invoked
- Section 11(1) of the Supreme Court Act and rule 6(2) of the Supreme Court Rules, 2020
Relief refused
#Review and setting aside of the Deputy Registrar's decision dated November 4, 2022
The Deputy Registrar properly and judiciously exercised his discretion in declining to lodge the petition because the petition was not framed in compliance with the Supreme Court Rules, 2020 and the Court of Appeal had not made any determination to require the intervention of the Supreme Court.
Costs
Parties shall bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I am satisfied that the Deputy Registrar properly and judiciously exercised his discretion in declining to lodge the applicant's petition.
the decision of the Court of Appeal to take out the applicant's appeal from the hearing list did not constitute a determination to warrant invocation of the court's jurisdiction under article 163(4)(b) of the Constitution
under rule 6 aforesaid, one of the roles of the Registrar is; (b) to decline pleadings that are not in accordance with the Constitution, the Act, these rules, or the court's practice directions for filings
Any square involvement of this court, in such a context, would entail comments on the merits, being made prematurely on issues yet to be adjudged, at the Court of Appeal
The notice of motion dated November 16, 2022 and filed on November 21, 2022 is hereby dismissed.
Key timeline
#Practical implications
#Strict compliance with Supreme Court rules
Ensure every petition to the Supreme Court strictly follows the Supreme Court Rules, 2020, including format and content. The Registrar will reject non-compliant filings. If rejected, you can apply for review to a single judge, but that decision is final. Also, do not file a Supreme Court petition until the Court of Appeal has issued a final determination on the merits.
Plan appeals carefully to avoid delays
If your business is involved in litigation, understand that the Supreme Court will not hear an appeal until the Court of Appeal has fully decided your case. Trying to skip steps or filing incomplete documents will result in rejection and wasted time. Work with lawyers who know the Supreme Court's filing rules to avoid procedural setbacks.
Follow court rules even without a lawyer
If you represent yourself, you must still follow all Supreme Court rules exactly. The Registrar can reject your papers if they are not in the correct form. You cannot bypass the Court of Appeal and go straight to the Supreme Court. Wait for the Court of Appeal to make a final decision before attempting a Supreme Court appeal.
Frequently asked questions
#Can the Supreme Court in Kenya hear my appeal before the Court of Appeal decides?+
No. The Supreme Court will only hear appeals after the Court of Appeal has made a final determination. If the Court of Appeal has not yet ruled on your case, the Supreme Court will not intervene, as it would be premature.
What happens if the Supreme Court Registrar rejects my petition in Kenya?+
You can apply for a review of that decision to a single Supreme Court judge. The judge's decision on the review is final. You cannot appeal further. Make sure your petition follows all rules to avoid rejection.
Does removing an appeal from the hearing list count as a Court of Appeal decision in Kenya?+
No. Removing an appeal from the hearing list is not a 'determination' under Article 163(4)(b) of the Constitution. It does not give you the right to go to the Supreme Court. You must wait for the Court of Appeal to hear and decide your case.
What is Article 163(4)(b) of the Kenyan Constitution?+
It is the provision that allows appeals to the Supreme Court from the Court of Appeal in cases involving the interpretation or application of the Constitution. But the Court of Appeal must first make a final decision on the matter before you can appeal under this article.
Cite this brief
#Cite this brief
Caselaw, "Wafula v Director of Public Prosecutions & 149 others", Case Analysis (2023). Criminal Petition E032 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/16/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.