FNH v Housing Finance Company of Kenya Limited & another
The bottom line
#Supreme Court cannot hear new issues not first raised in High Court or Court of Appeal.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the Supreme Court has jurisdiction to determine a dispute on representation that was not raised in the High Court or Court of Appeal.
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.
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
#- 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
#- 1.The application dated 23rd December 2019 is hereby dismissed
- 2.The Applicants shall bear the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya
Relief refused
#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
#Practical implications
#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.
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.
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
#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
#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.