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Supreme CourtStruck OutPetition 33 (E037) of 2022· [2023] KESC 36 (KLR)

WMM v EWG

Supreme Court of Kenya
16 June 2023
5,798 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from interim Court of Appeal orders without a final judgment.

What this practically means

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The Supreme Court struck out an appeal because it only hears cases after the Court of Appeal has made a final decision on constitutional issues. The appellant tried to challenge a temporary order refusing to stop court proceedings. The Court said that was not a final judgment, so it had no power to hear the case. The appeal was dismissed, and each side paid their own costs.

Executive summary

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The appellant appealed against the Court of Appeal's decision declining to grant a stay of proceedings under rule 5(2)(b) of the Court of Appeal Rules. The underlying dispute concerns matrimonial property and the dissolution of marriage. The High Court had allowed the respondent to amend her originating summons to include a claim for presumption of marriage and dissolution, holding that it had unlimited original jurisdiction under article 165(3)(a) of the Constitution. The Court of Appeal affirmed this position, finding that the appellant had no arguable appeal. The appellant then appealed to the Supreme Court under article 163(4)(a), arguing that the superior courts had erred in interpreting the High Court's jurisdiction vis-à-vis the Marriage Act. The Supreme Court struck out the appeal for want of jurisdiction. It held that the appeal arose from an interlocutory decision of the Court of Appeal under rule 5(2)(b), not from a substantive judgment determining constitutional issues. The Court reiterated its settled jurisprudence that it lacks jurisdiction to entertain appeals challenging the exercise of discretion under rule 5(2)(b) where there is no substantive appeal pending before it. The Court distinguished its decisions in Hassan Ali Joho and Bia Tosha, where it had assumed jurisdiction because those appeals involved substantive constitutional determinations that had progressed through the High Court and Court of Appeal. The Court ordered each party to bear their own costs.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under article 163(4)(a) of the Constitution to hear an appeal arising from an interlocutory decision of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules.

Holding

The Supreme Court lacks jurisdiction to hear such an appeal because there is no substantive judgment of the Court of Appeal determining constitutional issues; the appeal is merely against the exercise of discretion in an interlocutory application.

Reasoning

The Court of Appeal's decision under rule 5(2)(b) is an interlocutory order preserving the substratum of the appeal, not a final determination of constitutional issues. The Supreme Court's jurisdiction under article 163(4)(a) requires a judgment from the Court of Appeal where constitutional interpretation or application has been canvassed and determined. Without such a judgment, there is nothing for the Supreme Court to sit on appeal over. The appellant's intended appeal before the Court of Appeal is still pending, making any involvement by the Supreme Court premature and prejudicial.

02

Whether the Court of Appeal's determination on the question of jurisdiction in an interlocutory application under rule 5(2)(b) constitutes a substantive determination of a constitutional question for purposes of article 163(4)(a).

Holding

No, such a determination is preliminary and not final; it does not create a finality to contested issues that would warrant an appeal to the Supreme Court under article 163(4)(a).

Reasoning

The Court of Appeal, in deciding whether the appellant had an arguable appeal, considered the question of jurisdiction. However, this was a prima facie assessment necessary for the exercise of its discretion under rule 5(2)(b), not a definitive conclusion on the merits. The main appeal on the constitutional issues is still pending before the Court of Appeal. Therefore, there is no judgment from the Court of Appeal in which constitutional issues have been analyzed and a determination issued, as required for an appeal under article 163(4)(a).

Legal principles established

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  • An appeal under article 163(4)(a) requires a substantive judgment from the Court of Appeal on constitutional issues.
  • The Supreme Court lacks jurisdiction over interlocutory decisions under rule 5(2)(b) of the Court of Appeal Rules.
  • A prima facie assessment of jurisdiction in an interim application is not a final determination.
  • The Supreme Court cannot intervene while the main appeal is still pending in the Court of Appeal.
  • Each party bears its own costs when an appeal is struck out for lack of jurisdiction.

Court orders

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  1. 1.The petition of appeal dated November 23, 2022 and filed on November 24, 2022 is hereby struck out for want of jurisdiction.
  2. 2.The amount of Kshs 6000/= deposited in court as security for costs be and is hereby released to the appellant.
  3. 3.Each party shall bear their costs of the appeal.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 165(2)(a)
  • Constitution of Kenya, 2010Article 165(3)(a)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 29(c) & (f)
  • Constitution of Kenya, 2010Article 40(1) & (2)
  • Constitution of Kenya, 2010Article 45(3)
  • Supreme Court ActSection 15A
  • Supreme Court ActSection 3
  • Supreme Court Rules, 2020Rule 39
  • Court of Appeal RulesRule 5(2)(b)
  • Matrimonial Property Act, 2013Section 4
  • Matrimonial Property Act, 2013Section 6
  • Matrimonial Property Act, 2013Section 7
  • Matrimonial Property Act, 2013Section 8
  • Matrimonial Property Act, 2013Section 9
  • Matrimonial Property Act, 2013Section 12(2) & (3)
  • Matrimonial Property Act, 2013Section 17
  • Matrimonial Property Act, 2013Section 17(2)(b)
  • Marriage Act, 2014Section 2
  • Marriage Act, 2014Section 66(2)

Cases cited (9)

  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    SC Petition No 10 of 2013 [2014] eKLR
  • Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others
    SC Application No 10 of 2017 [2018] eKLR
  • Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another
    SC Petition No 3 of 2012 [2012] eKLR
  • Erad Suppliers & General Contractors Ltd vs National Cereals & Produce Board
    SC Petition No 5 of 2012 [2012] eKLR
  • Deynes Muriithi v the Law Society of Kenya & another
    Civil Application No 12 of 2015
  • Teachers Service Commission v Kenya National Union of Teachers & 3 others
    Sup Ct Civil Application No 16 of 2015
  • Basil Criticos v Independent Electoral and Boundaries Commission & 2 others
    SC Petition No 22 of 2014 [2015] eKLR
  • Clement Kungu Waibara v Annie Wanjiku Kibeh & another
    SC Civil Application No 31 of 2020 [2020] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC Petition No 4 of 2012 [2014] eKLR
On appeal from
Court of Appeal at Nairobi
Civil Application No E416 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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2022-11-23
Petition of appeal dated
2022-11-24
Petition filed in Supreme Court
2023
Supreme Court strikes out appeal for want of jurisdiction

Practical implications

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For lawyers

Jurisdiction limits for Supreme Court appeals

When appealing Court of Appeal interim orders, ensure there is a final judgment on constitutional issues. Do not appeal rule 5(2)(b) decisions directly to the Supreme Court. Instead, wait for the main appeal to be determined. This saves costs and avoids strike-out.

For businesses

Interim orders cannot be appealed to Supreme Court

If you are involved in litigation and the Court of Appeal issues an interim order (e.g., stay of proceedings), you cannot leapfrog to the Supreme Court. You must wait for the final judgment. Plan your litigation strategy accordingly to avoid wasted resources.

For individuals

Know your appeal rights in court

If you lose an interim court order, you cannot directly appeal to the Supreme Court. You must first get a final decision from the Court of Appeal. This case shows the importance of understanding which court can hear your appeal. Consult a lawyer to avoid filing in the wrong court.

Frequently asked questions

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Can I appeal a Court of Appeal interim order to the Supreme Court in Kenya?+

No, the Supreme Court only hears appeals from final judgments of the Court of Appeal on constitutional issues. Interim orders under rule 5(2)(b) are not appealable to the Supreme Court. You must wait for the main appeal to be decided.

What is rule 5(2)(b) of the Court of Appeal Rules in Kenya?+

It allows the Court of Appeal to grant interim relief, like a stay of proceedings, while an appeal is pending. The decision is discretionary and not a final judgment.

What does article 163(4)(a) of the Kenyan Constitution say?+

It gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal if the case involves interpretation or application of the Constitution. But only from a final judgment, not interim orders.

Why was the appeal in John Mwangi Ndirangu v Mary Wanjiku Githinji struck out?+

Because the appellant tried to appeal an interim Court of Appeal decision refusing a stay. The Supreme Court said it lacks jurisdiction to hear such appeals without a final judgment on constitutional issues.

Cite this brief

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Cite this brief

Caselaw, "WMM v EWG", Case Analysis (2023). Petition 33 (E037) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/36/eng@2023-06-16

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