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Supreme CourtDismissedPetition 4 of 2012

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others

Supreme Court of Kenya
20 August 2013
Willy MutungaW.M. MutungaKalpana RawalK.H. RawalPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
17,933 words in judgment
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·~72 min to read original · ~4 min brief

The bottom line

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Supreme Court can overrule its own past decisions, but only for very strong reasons.

What this practically means

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The Kenyan Supreme Court has the power to change its own previous rulings. However, this power is not to be used lightly. The Court will only overrule an earlier decision if there is a very good reason and after careful thought. It will not change a decision just because the current judges might disagree with it. In this case, the Court refused to overturn its earlier ruling that struck down a law allowing certain appeals to bypass normal jurisdiction rules.

Executive summary

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This was a petition before the Supreme Court of Kenya seeking to depart from its earlier decision in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & Two Others (the Macharia Case), which had declared Section 14 of the Supreme Court Act, 2011 unconstitutional. The petitioners had originally appealed a Court of Appeal decision to the Supreme Court under Section 14's 'special jurisdiction', which allowed review of judgments where a judge had resigned due to misconduct. The presiding judge in their Court of Appeal appeal, Justice A.B. Shah, had resigned after being suspended following allegations of collusion with a respondent. After the Macharia Case struck down Section 14, the respondents raised a preliminary objection that the Supreme Court lacked jurisdiction. The petitioners then applied for the Court to depart from the Macharia decision, arguing it was decided per incuriam and that its declaration on Section 14 was obiter dictum. The Supreme Court, in a 6-1 majority decision (with Ibrahim, SCJ dissenting), dismissed the application. The Court held that while the Supreme Court can depart from its previous decisions for good cause, the Macharia decision was not per incuriam and its declaration on Section 14 was part of the ratio decidendi, not obiter dictum. The Court laid down principles for when it may depart from its precedent, including that mere doubts as to correctness are insufficient. The Court affirmed the Macharia decision and declined to reopen the matter. Costs were ordered to be in the cause. The Chief Justice and Deputy Chief Justice wrote separate concurring opinions, while Justice Ibrahim dissented, arguing the declaration on Section 14 was made without proper procedure and should be departed from.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Supreme Court can depart from its earlier decision?
  2. 2.If yes, in what circumstances is such a departure tenable?
  3. 3.On the facts and determination of the Macharia Case, does it call for departure?
  4. 4.Does the Macharia Case, on the merits, meet the baseline of principles for a departure?

Key legal issues

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01

Whether the Supreme Court can depart from its earlier decisions.

Holding

Yes, the Supreme Court can depart from its previous decisions for good cause and after taking into account legal considerations of significant weight.

Reasoning

The Court held that Article 163(7) of the Constitution, which states that all courts other than the Supreme Court are bound by its decisions, implies that the Supreme Court itself is not bound. This is supported by comparative jurisprudence from India, the UK, and the US. The Court's mandate under Article 259 to develop the law and Section 3 of the Supreme Court Act to develop rich jurisprudence also supports this power. However, departure is not to be taken lightly; it requires substantial cause and exceptional circumstances.

p. 15
02

Whether the decision in the Macharia Case was given per incuriam.

Holding

No, the Macharia decision was not given per incuriam.

Reasoning

The petitioners argued that the Macharia decision was per incuriam because the Court stated that Article 163 exhaustively provides for the Supreme Court's jurisdiction, ignoring Articles 58 and 168. The Court rejected this, noting that the Macharia Court was aware of other jurisdictional provisions (e.g., Article 168(8)). The Court held that the test for per incuriam is strict: the decision must have been made in ignorance of a specific applicable instrument, rule, or authority. The petitioners failed to demonstrate such ignorance.

p. 21
03

Whether the declaration on the constitutionality of Section 14 in the Macharia Case was obiter dictum.

Holding

No, the declaration was part of the ratio decidendi, not obiter dictum.

Reasoning

The Court reasoned that the issue of jurisdiction was central to the Macharia Case, and the constitutionality of Section 14 was directly relevant to that jurisdictional question. The Court noted that the issue was raised in depositions and submissions. As the apex Court with a mandate to assert the supremacy of the Constitution, it was proper to make a finding on the relationship between the Constitution and Section 14. The Court cited Professor Goodman's work to support the principle that the more superior the court, the wider the ratio can be.

p. 21
04

Whether the petitioners' right to a fair trial and access to justice could be remedied by the Supreme Court despite the lack of jurisdiction under Section 14.

Holding

The Supreme Court lacks jurisdiction to remedy the alleged injustice because Section 14 was unconstitutional and the Court declined to depart from that decision. The proper forum for redress of fundamental rights violations is the High Court under Articles 23 and 165 of the Constitution.

Reasoning

The Court acknowledged the petitioners' grievance about an allegedly tainted Court of Appeal decision but held that the jurisdictional question was preliminary. Since Section 14 was declared unconstitutional and the Court declined to depart from that decision, the petitioners could not ground their case on it. The Court noted that the High Court has jurisdiction under Articles 23 and 165 to hear claims of fundamental rights violations, even those arising from appellate decisions.

Legal principles established

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  • The Supreme Court can depart from its own previous decisions for good cause and after weighing significant legal considerations.
  • A previous Supreme Court decision will not be set aside just because the current judges might reach a different conclusion on the same issue.
  • A decision by the Supreme Court on the constitutionality of a law, made while deciding whether it has jurisdiction, is a binding part of its ruling, not just a passing comment.
  • A court decision is only 'made in ignorance of the law' if it overlooked a specific law or authority, which is a very strict test.
  • The proper place to raise claims of unfair trial or denied justice is the High Court, not the Supreme Court, when the Supreme Court lacks jurisdiction.

Court orders

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  1. 1.The application is disallowed.
  2. 2.The costs shall be in the cause.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Willy Mutunga
concurring

Wrote the judgment

Concurred with the majority decision but wrote separately to expand on four issues: the correctness of the Macharia decision, interpretation of the Constitution, the doctrine of stare decisis, and the principle that there is no right without a remedy. He held that Section 14 was also unconstitutional on grounds of discrimination and violation of property rights.

I concur with the decision of the majority in this matter. I write separately, however, to expand on four issues that I deem useful in this matter.p. 22
Kalpana Rawal
concurring

Wrote the judgment

Concurred with the majority ruling but wrote separately to elaborate on the history of Article 163 and Section 23 of the Sixth Schedule, emphasizing the need for the Court to have approached the constitutionality issue in Macharia more comprehensively.

I have keenly perused the majority ruling of the Court and I do concur with the rendition of facts and relevant laws meticulously considered therein.p. 29
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
dissenting

Wrote the judgment

Dissented from the majority decision. He would have allowed the application to depart from the Macharia Case on the ground that the declaration of Section 14 as unconstitutional was made without proper procedure, was not directly in issue, and was made suo motu without involving the Attorney-General. He held the declaration was manifestly wrong.

I have read the majority decision in totality, and agree that the decisions of the Supreme Court... will stand as the binding reference-point... I would, however, have allowed a departure from the Macharia Case, on the basis of the principles just proposed.p. 33
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 63 of 2001
Jurisdiction invoked
Section 14 of the Supreme Court Act, 2011 (special jurisdiction); Article 163 of the Constitution

Relief refused

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Application to depart from the decision in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & Two Others, Supreme Court Application No. 2 of 2011

The Court found no grounds of cogency to warrant departure; the Macharia decision was not per incuriam and the declaration on Section 14 was part of the ratio decidendi.

p. 21

Application to have the petition heard on the basis of Section 14 of the Supreme Court Act

Section 14 had been declared unconstitutional in the Macharia Case and the Court declined to depart from that decision.

p. 22

Costs

The costs shall be in the cause.

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.

In principle therefore, it follows that this Court, an apex Court, can indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight.
p. 15 Stare decisis and departure from precedent
The Supreme Court's decision on the issue of the constitutionality of Section 14 of the Supreme Court Act, therefore, is to be considered an element in the ratio decidendi in the Macharia Case, rather than an obiter dictum.
p. 21 Ratio decidendi vs obiter dictum
A previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion.
p. 19 Stare decisis
There is no injustice that the Constitution of Kenya is powerless to redress.
p. 29 Access to justice and remedies

Key timeline

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Before 2012
Jasbir Singh Rai and others lose a case in the Court of Appeal, where Judge A.B. Shah presided before resigning due to misconduct allegations.
2012
Samuel Kamau Macharia case decides: Section 14 of the Supreme Court Act (allowing appeals based on judge misconduct) is unconstitutional.
After 2012
Jasbir Singh Rai and others try to appeal the Court of Appeal decision to the Supreme Court under the now-invalid Section 14.
2013
Supreme Court dismisses the Rai application, refusing to overrule the Macharia decision. The Court holds it has no jurisdiction to hear the appeal.

Practical implications

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For lawyers

Argue High Court First for Rights

When your client alleges a violation of fair trial rights from a Court of Appeal decision, do not file directly in the Supreme Court under Section 14 of the Supreme Court Act. That section is gone. Instead, your initial and proper remedy lies in the High Court under Articles 23 and 165 of the Constitution. Use this case to preempt jurisdictional objections by filing in the correct forum immediately.

For businesses

Prepare for Final Court of Appeal

Businesses should note that the Supreme Court will not lightly reopen settled law. A change in judicial personnel or a belief that a prior decision was wrong is not enough to get the Supreme Court to overrule itself. This means you must fight your case vigorously at the Court of Appeal, because once the Supreme Court rules on a point of law, that ruling is very likely to stick for the long term.

For individuals

Know Where to Claim Your Rights

If you believe a judge's misconduct in your case denied you a fair trial, do not assume the Supreme Court can automatically fix it. The law that gave the Supreme Court that special power has been struck down. Your first step should be to file a complaint at the High Court, which has the constitutional authority to hear and remedy fundamental rights violations.

Frequently asked questions

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Can the Supreme Court of Kenya overturn its own previous decisions?+

Yes, the Supreme Court can overrule its own past rulings, but only for very strong reasons. This case confirmed that the Court has that power, but it will not use it just because the current judges think the earlier ruling was wrong. There must be a significant legal reason to change course.

What happened to the law about appealing to the Supreme Court due to judge misconduct in Kenya?+

The Supreme Court already ruled in the Macharia case that Section 14 of the Supreme Court Act, which allowed such appeals, is unconstitutional. In this Rai case, the Court refused to bring that law back. That appeal route is permanently closed.

Where do I go if I think my trial was unfair because of a biased judge in Kenya?+

You go to the High Court. The Rai case clarified that claims of unfair trial or violations of your rights must be filed in the High Court under Articles 23 and 165 of the Constitution. The Supreme Court cannot hear them under the old, now-invalid, law.

Is the Supreme Court bound by its own decisions in Kenya?+

No, the Supreme Court is not bound by its own decisions in the same way lower courts are. The Constitution binds all other courts to follow the Supreme Court, but the Supreme Court itself can change its mind if there is a very good reason to do so.

Later judgments citing this (25)

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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, "Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others", Case Analysis (2013). Petition 4 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/21/eng@2013-08-20

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