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Supreme CourtOtherReference E001 of 2022

Attorney General (On Behalf of the National Government) v Karua

Supreme Court of Kenya
31 May 2024
13,663 words in judgment
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AI-assisted case brief
·~55 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court has final say; the East African Court of Justice cannot overturn its decisions.

What this practically means

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The Supreme Court of Kenya issued an advisory opinion confirming that the East African Court of Justice (EACJ) cannot act as an appeal court for Supreme Court decisions. If the EACJ tries to review the merits of a Supreme Court ruling, that decision has no legal effect in Kenya. This arose from a dispute over the 2017 Kirinyaga gubernatorial election where Martha Karua took her case to the EACJ after losing in Kenya's highest court.

Executive summary

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This is an advisory opinion rendered by the Supreme Court of Kenya under Article 163(6) of the Constitution, at the request of the Attorney General on behalf of the national government. The reference arose from a dispute where Hon. Martha Karua, after losing the 2017 Kirinyaga gubernatorial election and exhausting domestic remedies up to the Supreme Court, successfully challenged the Supreme Court's decision at the East African Court of Justice (EACJ). The EACJ found that Kenya had violated the EAC Treaty by not properly interpreting the Constitution. The Attorney General sought clarity on whether the EACJ has jurisdiction to conduct merit review of Supreme Court decisions and the legal effect of such decisions. The court overruled the intervener's preliminary objection, finding that the matter concerns county government under Article 180, the issues are of great public importance, and the reference is not premature. On the substantive question, the court held that the EACJ does not have appellate or merit review jurisdiction over decisions of the Supreme Court of Kenya. The court reasoned that the EACJ's jurisdiction under Article 27 of the EAC Treaty is limited to interpretation and application of the Treaty, and does not extend to reviewing national court decisions. The Constitution is the supreme law, and international law applies only insofar as it does not conflict with the Constitution, local statutes, or final judicial pronouncements. The court further held that a mere disagreement with domestic courts' interpretation does not constitute a Treaty violation, and any EACJ decision purporting to conduct merit review would be of no legal consequence. No orders as to costs were made.

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 render the advisory opinion
  2. 2.Whether the advisory opinion is premature for lack of advice from the AG
  3. 3.Whether the decisions of the Supreme Court on the interpretation of Kenyan law can be subject to a merit review by the East African Court of Justice and if so, what is the effect of such decisions

Key legal issues

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01

Whether the Supreme Court has jurisdiction to render an advisory opinion under Article 163(6) where the matter concerns a county government.

Holding

The court has jurisdiction because the reference arises from a gubernatorial election dispute in Kirinyaga County, which concerns a county government under Article 180 of the Constitution.

Reasoning

The court applied the guidelines from Re IIEC and Re Speaker of the Senate, finding that the matter qualifies as one concerning county government because it originated from the 2017 Kirinyaga gubernatorial election. The fact that the dispute later reached the EACJ does not remove the county element. The issues raised are of great public importance and cannot be settled through ordinary litigation, and no lower court in Kenya has pending proceedings on the same questions.

02

Whether the advisory opinion is premature for lack of prior advice from the Attorney General.

Holding

The reference is not premature because the Attorney General cannot be expected to seek a legal opinion from itself, and there is no mandatory requirement to first seek the AG's opinion.

Reasoning

The court relied on Article 156(4)(a) of the Constitution, which designates the AG as the principal legal advisor of the Government. It would be absurd to require the AG to seek an opinion from itself. While as a matter of good practice the AG's opinion should be sought before approaching the court, the AG filed this reference pursuant to his constitutional authority, and if he had the capacity to resolve the matter he would have advised the government directly.

03

Whether the East African Court of Justice has appellate or merit review jurisdiction over decisions of the Supreme Court of Kenya.

Holding

The EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya.

Reasoning

The court analyzed Article 27(1) of the EAC Treaty, which limits the EACJ's jurisdiction to interpretation and application of the Treaty and expressly excludes application of such interpretation to jurisdiction conferred on organs of partner states. The court reviewed international jurisprudence from the European Court of Human Rights, Inter-American Court, and ECOWAS Court, all of which apply a margin of appreciation and recognize that regional courts do not act as appellate courts over national apex courts. The Constitution positions the Supreme Court as the final judicial authority, and decisions of the Supreme Court are binding on all courts in Kenya and not subject to further appeal.

04

What is the legal effect of a decision by the EACJ that amounts to a merit review of a Supreme Court decision?

Holding

Such a decision would be of no legal consequence.

Reasoning

The court relied on Article 9(4) of the EAC Treaty, which provides that organs of the EAC shall only perform functions conferred on them by the Treaty. Since the EACJ has no appellate or merit review jurisdiction over Supreme Court decisions, any decision purporting to exercise such jurisdiction is ultra vires the Treaty and has no legal effect in Kenya. The Constitution is the supreme law, and international law cannot be applied in a manner that upstages clear constitutional prescriptions.

Legal principles established

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  • The Supreme Court can give advisory opinions on matters concerning county governments.
  • The Attorney General does not need to seek its own opinion before requesting an advisory opinion from the Supreme Court.
  • The East African Court of Justice has no appellate or merit review jurisdiction over Kenya's Supreme Court.
  • A mere disagreement with a domestic court's interpretation does not violate the EAC Treaty.
  • International law applies in Kenya only if consistent with the Constitution and final court decisions.
  • Any EACJ decision that amounts to a merit review of a Supreme Court decision is void in Kenya.

Court orders

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  1. 1.The preliminary objection by Hon Karua is overruled
  2. 2.The court renders an advisory opinion as requested
  3. 3.No orders as to costs

The bench

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

Martha Karambu Koome
MK KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
PM MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
SC WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution of Kenya

Relief refused

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Dismissal of the Reference

The court found it had jurisdiction and the reference was not premature

Costs

We shall make no order as to 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.

the EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya in matters concerning the interpretation and application of the Constitution of Kenya or any other matter arising from the latter's decisions
p. 22 Jurisdiction of EACJ vis-à-vis Supreme Court
mere disagreement with the interpretation that domestic courts have made of pertinent legal provisions does not constitute violations of the EAC Treaty
p. 22 Standard for EAC Treaty violation
international law, including treaty law, applies in Kenya and by extension to the organs of the state as long as the same are not in conflict with the Constitution, local statutes, and final judicial pronouncements
p. 18 Application of international law in Kenya
On the effect of a decision amounting to a merit review by the EACJ of a decision by a final national court such as this one, such a decision would be of no legal consequence
p. 22 Legal effect of ultra vires EACJ decision
We shall make no order as to costs
p. 22 Costs order

Key timeline

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2017
Kirinyaga gubernatorial election
After 2017
Supreme Court of Kenya delivers final decision on election petition
Prior to 2024
East African Court of Justice rules on Martha Karua's case, finding Kenya violated EAC Treaty
2024
Supreme Court of Kenya delivers advisory opinion (Attorney General v Karua, [2024] KESC 21)

Practical implications

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For lawyers

EACJ cannot overrule Kenyan Supreme Court

Kenyan lawyers must advise clients that the EACJ is not an appellate court for Supreme Court decisions on constitutional interpretation. Any EACJ ruling that attempts to review the merits of a Supreme Court decision has no legal effect in Kenya. Clients considering challenging domestic judgments at the EACJ should be warned of this limitation.

For businesses

Cross-border dispute resolution clarity

Businesses operating in East Africa should understand that regional courts like the EACJ cannot substitute their judgment for that of Kenya's highest court on Kenyan law matters. If a dispute involves interpretation of Kenya's Constitution, the Supreme Court's decision is final. This provides certainty for business planning and investment.

For individuals

Your final court is Kenya's Supreme Court

Individuals who lose a case in Kenya's Supreme Court cannot appeal to the East African Court of Justice as if it were a higher court. The EACJ only handles treaty violations, not merit reviews. If you disagree with the Supreme Court's interpretation of law, that disagreement alone does not amount to a treaty violation.

Frequently asked questions

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Can I appeal a Kenyan Supreme Court decision to the East African Court of Justice in Kenya?+

No. The Supreme Court of Kenya is the final court. The East African Court of Justice (EACJ) cannot review or overturn Supreme Court decisions on their merits. Any EACJ decision that tries to do so has no legal effect in Kenya.

What happened in the Attorney General v Karua case in Kenya?+

After Martha Karua lost the 2017 Kirinyaga gubernatorial election and exhausted all local appeals, she took her case to the EACJ. The Kenyan Supreme Court then advised that the EACJ has no power to review its decisions, and any such EACJ ruling is void in Kenya.

Does the East African Court of Justice have jurisdiction over Kenyan courts in Kenya?+

The EACJ can interpret the EAC Treaty, but it cannot act as an appellate court for Kenya's Supreme Court. It cannot review the merits of a Supreme Court decision on Kenyan law. International law applies in Kenya only if consistent with the Constitution and final court decisions.

What is the effect of an EACJ decision conflicting with Kenyan Supreme Court in Kenya?+

Such a decision has no legal consequence in Kenya. The Supreme Court ruled that because the EACJ lacks jurisdiction to review its decisions, any purported review is ultra vires and cannot be enforced in Kenya.

Later judgments citing this (1)

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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, "Attorney General (On Behalf of the National Government) v Karua", Case Analysis (2024). Reference E001 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/21/eng@2024-05-31

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