WMM v EWG
The bottom line
#Supreme Court cannot hear appeals from interim Court of Appeal orders without a final judgment.
What this practically means
#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
#Key legal issues
#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.
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.
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.
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).
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).
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
#- 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
#- 1.The petition of appeal dated November 23, 2022 and filed on November 24, 2022 is hereby struck out for want of jurisdiction.
- 2.The amount of Kshs 6000/= deposited in court as security for costs be and is hereby released to the appellant.
- 3.Each party shall bear their costs of the appeal.
- 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
#Practical implications
#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.
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.
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
#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
#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.