Janmohamed S.C (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v Lagat & 4 others
The bottom line
#Once the Supreme Court decides its jurisdiction, you cannot ask it to reconsider that same issue again.
What this practically means
#The Supreme Court dismissed an application that tried to reopen a question it had already decided. In October 2022, the Court ruled it had jurisdiction to hear the appeal. The 2nd respondent later filed a motion asking the Court to revisit that jurisdictional issue. The Court said the issue was conclusively determined and could not be re-litigated. The application was frivolous and an abuse of court process. The applicant had to pay the costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction under article 163(4)(a) of the Constitution to entertain the appeal
Key legal issues
#Whether the Supreme Court can revisit the issue of its jurisdiction under article 163(4)(a) of the Constitution after it has been determined in a prior ruling in the same appeal
The court held that the issue of jurisdiction was conclusively determined in its ruling dated October 28, 2022, and cannot be re-litigated. The subsequent application was therefore dismissed as frivolous, vexatious, and an abuse of process.
The Supreme Court had already ruled on October 28, 2022, that it had jurisdiction under article 163(4)(a) because the appeal raised issues involving the interpretation or application of the Constitution. The 2nd respondent's application sought to re-argue this same jurisdictional question. The court found that this issue was conclusively determined and all other issues raised were misguided. Consequently, the application was deemed frivolous, vexatious, and an abuse of the process of court, and was dismissed with costs.
Legal principles established
#- Once the Supreme Court determines its jurisdiction under Article 163(4)(a) in a prior ruling, that issue is res judicata and cannot be re-litigated.
- An application seeking to re-litigate a jurisdictional issue already determined is frivolous, vexatious, and an abuse of process.
- All other issues raised in a subsequent application after jurisdictional determination are misguided if they rely on re-arguing jurisdiction.
- The Supreme Court has the power to dismiss such applications with costs.
- The principle of finality in jurisdictional rulings is upheld.
Court orders
#- 1.The notice of motion dated June 14, 2023 and lodged on June 15, 2023, is hereby dismissed
- 2.The costs of this application shall be borne by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu
- Kisumu Civil Appeal No 159 of 2019 as consolidated with Kisumu Civil Appeal No 254 of 2019
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition 24 (E027) of 2022
Relief refused
#Stay of determination of the application dated January 13, 2023 for leave to adduce additional evidence
The application was deemed frivolous, vexatious, and an abuse of the process of court
Striking out Petition No 17 (E021) of 2022 (as consolidated with Petition No 24 (E027) of 2022)
The issue of jurisdiction was conclusively determined in the ruling dated October 28, 2022
Expunging grounds of appeal and skeletal arguments from the petition
The application was deemed frivolous, vexatious, and an abuse of the process of court
Sanctioning and punishing the firms of Kinoti Kibe & Company Advocates and Kemboy Law Advocates
The application was deemed frivolous, vexatious, and an abuse of the process of court
Costs
The costs of this application shall be borne by the applicant
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.
Having carefully considered the application, responses thereto, and rival submissions by the parties, and guided by this court’s ruling dated October 28, 2022, in this same appeal; we find that the issue as to whether the court has jurisdiction under article 163(4)(a) was conclusively determined in the ruling aforesaid
we deem the application before us frivolous, vexatious, and an abuse of the process of court
Key timeline
#Practical implications
#Raise jurisdiction arguments early
If you are representing a party in a Supreme Court appeal, ensure you raise any jurisdictional challenge at the very first opportunity. Once the Court rules on jurisdiction, you cannot file a subsequent application to re-argue that point. Doing so will result in dismissal with costs, and your client may be penalized.
Avoid delays by settling jurisdiction early
Businesses involved in litigation should understand that the Supreme Court will not allow repeated applications on the same jurisdictional issue. Once the Court confirms its jurisdiction, further attempts to re-litigate that question will be dismissed with costs, wasting time and money. Focus your resources on the merits of the case.
Do not reopen settled issues
If you are a party in a Supreme Court case, make sure you present all your arguments on jurisdiction at the first hearing. Filing another application later to argue the same point will be rejected as an abuse of process. You may also have to pay the other side's legal fees for that application.
Frequently asked questions
#What happens if you try to re-argue jurisdiction in the Supreme Court of Kenya after it has already decided?+
The Supreme Court will dismiss your application as frivolous, vexatious, and an abuse of process. You will also have to pay the other party's costs. The issue is considered res judicata, meaning it cannot be reopened.
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 was the basis for the Court's earlier ruling on jurisdiction.
Can you file multiple applications in the same Supreme Court case in Kenya?+
Yes, but you cannot use a new application to re-litigate issues that the Court has already decided, like jurisdiction. The Court will treat such applications as an abuse of process and dismiss them with costs.
What does res judicata mean in Kenyan courts?+
Res judicata means that a matter that has been conclusively decided by a court cannot be raised again in the same case or a new case. The Supreme Court applied this principle to prevent re-arguing jurisdiction.
Cite this brief
#Cite this brief
Caselaw, "Janmohamed S.C (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v Lagat & 4 others", Case Analysis (2023). Petition 17 (E021) & 24 (E027) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/85/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.