Attorney General v Kenya Ports Authority & 7 others
The bottom line
#Supreme Court cannot hear appeals from interim rulings while the main case is still in High Court.
What this practically means
#The Supreme Court dismissed an application by the Attorney General to appeal a Court of Appeal decision. The Court of Appeal had only dealt with a preliminary issue, not the main case. The Supreme Court said it only hears appeals on final constitutional questions that have been fully argued in lower courts. Interlocutory or interim decisions are not appealable to the Supreme Court until the main case is finished.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction to entertain an appeal from an interlocutory decision of the Court of Appeal where the substantive matter is still pending before the High Court.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from an interlocutory decision of the Court of Appeal while the substantive matter is still pending in the High Court.
The Supreme Court lacks jurisdiction to entertain such an appeal because Article 163(4)(a) limits appeals to decisions involving the interpretation or application of the Constitution, and interlocutory decisions are outside this ambit.
The court reasoned that Article 163(4)(a) circumscribes its jurisdiction to Court of Appeal decisions involving the interpretation or application of the Constitution. Interlocutory decisions are not only outside this ambit but involving the Supreme Court at such early stages may prejudice parties. The court distinguished cases like Hassan Ali Joho where the appeal was from a substantive determination of a constitutional question that had been canvassed from the High Court to the Court of Appeal, even though the substantive election petition was still pending. Here, the intended appeal arose from an interlocutory ruling dismissing an application to strike out a petition and overruling a preliminary objection, while the substantive petition was yet to be heard.
Legal principles established
#- Supreme Court jurisdiction under Article 163(4)(a) is limited to appeals on interpretation or application of the Constitution.
- Interlocutory decisions from the Court of Appeal are not appealable to the Supreme Court unless they finally determine a constitutional issue.
- Involving the Supreme Court at early stages of a case can prejudice parties and is not allowed.
- The Hassan Ali Joho case is distinguished because it involved a substantive constitutional determination, not an interim ruling.
- A pending substantive matter in the High Court prevents the Supreme Court from hearing an appeal on an interlocutory ruling.
Court orders
#- 1.The notice of motion application dated June 25, 2020 is dismissed for want of jurisdiction.
- 2.The record of appeal dated July 13, 2020 and registered as Petition No 12 of 2020 is hereby struck off the court’s record.
- 3.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Leave to file the petition and record of appeal out of time
The court lacked jurisdiction to entertain the appeal as it arose from an interlocutory decision while the substantive matter was still pending before the High Court.
Costs
Each party to bear its 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.
As this court has repeatedly stated, it has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.
The notice of motion application dated June 25, 2020 is dismissed for want of jurisdiction;
For avoidance of doubt, the record of appeal dated July 13, 2020 and registered as Petition No 12 of 2020 is hereby struck off the court’s record.
Each party to bear its own costs.
Key timeline
#Practical implications
#Plan appeals to Supreme Court carefully
Do not file an appeal to the Supreme Court from an interlocutory ruling of the Court of Appeal while the main case is still in the High Court. Wait until the Court of Appeal issues a final decision on a constitutional question that has been fully argued through all lower courts. Otherwise, your application will be dismissed for lack of jurisdiction.
Litigation strategy for government contracts
If you are involved in a dispute with a government entity, such as the Take or Pay Agreement in this case, be aware that interlocutory appeals to the Supreme Court are not allowed. This means litigation may take longer as you must first complete the High Court and Court of Appeal stages before any Supreme Court review. Plan your legal budget and timeline accordingly.
Supreme Court is for final constitutional issues
As an individual, you cannot ask the Supreme Court to review a temporary court order or a preliminary objection ruling. The Supreme Court only hears cases that involve a final decision on a constitutional question. If your case is still ongoing in the High Court, you must wait until it is fully resolved before considering an appeal to the Supreme Court.
Frequently asked questions
#Can I appeal an interlocutory decision to the Supreme Court in Kenya?+
No, the Supreme Court only hears appeals from final decisions of the Court of Appeal that involve interpretation or application of the Constitution. Interlocutory or interim rulings, such as those on preliminary objections, cannot be appealed to the Supreme Court while the main case is still pending.
What is Article 163(4)(a) of the Kenyan Constitution?+
Article 163(4)(a) gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal if the case involves the interpretation or application of the Constitution. This means the appeal must be about a constitutional question, not just any legal issue, and it must come from a final decision.
What happened in Attorney General v William Odhiambo Ramogi & 7 others?+
The Attorney General tried to appeal a Court of Appeal ruling that dismissed an application to strike out a petition. The Supreme Court dismissed the appeal because the ruling was interlocutory and the main case was still in the High Court. The Supreme Court said it had no jurisdiction to hear such an appeal.
How does the Supreme Court decide if it has jurisdiction in Kenya?+
The Supreme Court checks whether the appeal is from a final decision of the Court of Appeal that involves a constitutional issue. If the decision is interlocutory or the constitutional question has not been fully argued in lower courts, the Supreme Court will dismiss the case for lack of jurisdiction.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kithinji v Director of Public Prosecutions & another[2023] KESC 18 (KLR)24 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Kenya Ports Authority & 7 others", Case Analysis (2020). Civil Application 15 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/4/eng@2020-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.