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Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 46 of 2019

FNH v Housing Finance Company of Kenya Limited & another

Supreme Court of Kenya
4 September 2020
2,088 words in judgment
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The bottom line

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Supreme Court cannot hear new issues not first raised in High Court or Court of Appeal.

What this practically means

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The Supreme Court dismissed an application to decide who legally represents a party in a case. The Court said it can only hear issues that were already argued in the High Court and Court of Appeal. Since the representation question was never raised before, the Court had no power to decide it. The applicant must pay costs.

Executive summary

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This was a Notice of Motion application by FNH (the Applicant) seeking a determination on the status of representation by counsel in a pending Supreme Court matter. The Applicant had executed a Power of Attorney in 2003 appointing Sharok Kher Mohamed Ali Hirji as his legal representative over a suit property. The Applicant alleged that the donee of the power of attorney had, without consulting him, attempted to negotiate and compromise a judgment worth over Kshs. 2 Billion, leading to the revocation of the Power of Attorney. The donee opposed the application, arguing that she had acted in good faith, had signed a Deed of Settlement on 11th December 2019 before any purported revocation, and that the Power of Attorney was irrevocable due to her interest in the property. The 1st and 2nd Respondents submitted that the dispute had nothing to do with the substantive appeal and that the Applicant remained a stranger to the proceedings. The Supreme Court, in a unanimous decision, dismissed the application. The court held that it lacked jurisdiction under Article 163(4)(a) of the Constitution because the issue of representation was a novel issue that had not been canvassed in the High Court or Court of Appeal and had not progressed through the normal appellate mechanism. The court ordered the Applicant to bear the costs of the application.

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 the requisite jurisdiction to determine the question as to the legal representation and validity of the power of attorney of the parties before the court.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to determine a dispute on representation that was not raised in the High Court or Court of Appeal.

Holding

The Supreme Court lacks jurisdiction because the issue of representation is a novel issue that has not been canvassed in the superior courts and has not progressed through the normal appellate mechanism.

Reasoning

The court examined Article 163(4)(a) of the Constitution and the principles from Lawrence Nduttu and Hassan Joho cases, which require that an appeal must originate from a Court of Appeal case where issues of constitutional interpretation or application were contested. Since neither the High Court nor the Court of Appeal delved into the issue of representation, it is a novel issue coming before the Supreme Court for the first time, and thus the court lacks jurisdiction.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) is limited to issues already canvassed in lower courts.
  • A novel issue not raised in the High Court or Court of Appeal cannot be brought directly to the Supreme Court.
  • The appellate mechanism requires issues to progress through the normal hierarchy before reaching the Supreme Court.
  • The Court cannot determine a dispute on representation if it was not part of the lower court proceedings.
  • Costs follow the event – the unsuccessful applicant bears the costs.

Court orders

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  1. 1.The application dated 23rd December 2019 is hereby dismissed
  2. 2.The Applicants shall bear the costs of this application

The bench

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya

Relief refused

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Determination of the status of representation by counsel in a cause pending before this court

The court lacked jurisdiction as the issue had not progressed through the normal appellate mechanism

Costs

The Applicants shall bear the costs of this application

Key timeline

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2003
Power of Attorney executed by FNH appointing Sharok Kher Mohamed Ali Hirji as legal representative.
2019-12-11
Deed of Settlement signed by the donee of the power of attorney.
2019-12-23
Application filed by FNH seeking determination on representation status.
Judgment date not specified
Supreme Court dismisses the application, lacking jurisdiction.

Practical implications

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For lawyers

Raise all issues in lower courts

Ensure every legal argument, including representation disputes, is introduced in the High Court or Court of Appeal first. Introducing a novel issue at the Supreme Court will lead to dismissal for lack of jurisdiction. This case confirms that the Supreme Court will not entertain new questions that bypass the normal appellate process.

For businesses

Resolve representation disputes early

If you have a dispute over who has authority to act on behalf of your company (e.g., through a power of attorney), raise it at the earliest possible stage in litigation. Waiting until the Supreme Court level will be too late. The Court will not hear it, and you may lose the chance to challenge representation.

For individuals

Act early on representation issues

If you believe someone is wrongly representing you in court, do not wait until the case reaches the Supreme Court. You must raise the issue in the High Court or Court of Appeal first. The Supreme Court has no power to decide representation questions that were never argued below, as shown in this case.

Frequently asked questions

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Can I bring a new issue directly to the Supreme Court in Kenya?+

No. The Supreme Court can only hear issues that were already argued in the High Court and Court of Appeal. A new issue raised for the first time at the Supreme Court will be dismissed for lack of jurisdiction.

What happens if I don't raise a representation issue in the lower courts in Kenya?+

You lose the chance to have the Supreme Court decide it. The Court will not hear a representation dispute that was not first raised in the High Court or Court of Appeal. You must act early in the case.

How does the Supreme Court's jurisdiction work under Article 163(4)(a) in Kenya?+

Article 163(4)(a) allows appeals from the Court of Appeal only on matters of constitutional interpretation or application. The issue must have been contested in the lower courts. A novel issue with no lower court history cannot be heard.

What is the cost of filing a Supreme Court application on a new issue in Kenya?+

The applicant will likely be ordered to pay the costs of the application if it is dismissed for lack of jurisdiction. In this case, the applicant had to bear the costs of the entire application.

Cite this brief

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Cite this brief

Caselaw, "FNH v Housing Finance Company of Kenya Limited & another", Case Analysis (2020). Petition 46 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/21/eng@2020-09-04

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