Njeru v Republic [1979] KECA 26 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it has no power to hear appeals from High Court fundamental rights decisions unless a statute expressly grants that right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to hear an appeal from a decision of the High Court made under section 84(1) and (2) of the Constitution (enforcement of fundamental rights and freedoms)
- 2.Whether the word 'law' in section 64(1) of the Constitution and section 3(1) of the Appellate Jurisdiction Act includes common law
- 3.Whether the Court of Appeal has a general supervisory role over the judicial process entitling it to hear appeals from all decisions of the High Court, as held in Dr James Flavian Chege Munene v R
- 4.Whether the decision in Munene's case is good law
Key legal issues
#Whether an appeal lies to the Court of Appeal from a High Court decision under section 84 of the Constitution
No appeal lies. Jurisdiction must be conferred by statute; the jurisdiction originally conferred by section 180 of the 1963 Constitution was repealed by the Constitution of Kenya (Amendment) Act 1965 and never restored.
The Court traced the conferment of appellate jurisdiction from the 1902 Orders in Council to the 1977 legislation. Kenya adopted the second form of conferment: a court established expressly without jurisdiction, leaving particular statutes (the Civil Procedure Act and Criminal Procedure Code) to confer it. Since the 1965 repeal of section 180 of the 1963 Constitution, no statute conferred appellate jurisdiction over section 84 enforcement decisions, so the appeal is incompetent.
Whether 'law' in the jurisdictional provisions includes common law
No. 'Law' is consonant with 'written law' and 'statute'; there never was a right of appeal at common law or under the doctrines of equity in England.
The Court examined the Judicature Act (Cap 8) incorporation of English common law as at 12 August 1897. The only English right of appeal from the High Court to the Court of Appeal was the statutory one in section 19 of the Judicature Act 1873. Authorities such as In re A Solicitor and National Telephone establish that appeals exist only by statute, so common law provides no right of appeal.
Whether the Court has a general supervisory role over the judicial process, per Munene's case
No. The submission is rejected; Munene's case is declared bad law and not to be followed.
The Court reviewed the authorities relied on in Munene's case (National Telephone, In re A Solicitor, Chelikani Rama Rao, Rangoon Botataoung, the Tanganyika and Aden cases, Uganda v Lule) and found each supports the rule that appellate jurisdiction exists only by statute. The novel concepts of 'pure law' and 'liberal interpretation' would, taken to their logical conclusion, make the Court unbound by statute or precedent, which cannot be right.
Legal principles established
#- There is no right of appeal to the Court of Appeal apart from statute; an appeal exists only where expressly granted by statutory authority.
- The word 'law' in section 64(1) of the Constitution and section 3(1) of the Appellate Jurisdiction Act is restricted in meaning to statute, i.e. Acts of the Parliament of Kenya.
- The Court of Appeal enjoys only such jurisdiction as is conferred on it by statute; it has no general supervisory role over the judicial process.
- The Court of Appeal has no jurisdiction to hear appeals from decisions of the High Court exercising its jurisdiction under section 84 of the Constitution of 1969.
- The 'pure law' and 'liberal interpretation' concepts in Munene's case are rejected; Munene's case is bad law and should not be followed.
Court orders
#- 1.The preliminary objection on jurisdiction is allowed
- 2.The appeal is struck out as incompetent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Misc Criminal Application No 4 of 1979
- Jurisdiction invoked
- Section 64(1) of the Constitution and section 3(1) of the Appellate Jurisdiction Act (Cap 9) — jurisdiction only as conferred by law (statute)
Relief refused
#Hearing of the appeal on the merits
Having found no jurisdiction, the Court declined to comment on the merits despite having heard the appeal de bene esse
Costs
No costs order recorded in the judgment as supplied.
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.
We must first refer to the history of this Court as our jurisdiction, originally, emanated from England, and the judicial systems of the countries whose authorities we must consider all follow the English system.
It is difficult to frame a clearer statement of the Law than in the rules set out in this case, which were that an appeal is never given except by statute, and that there is no appeal from one tribunal to another tribunal unless some statue gives the right to it.
This being so we would allow the preliminary point and hold that the appeal is incompetent.
Appeal struck out as incompetent.
Issues in the judgment
#The judgment quotes Munene's case both as stating the established rule that there is no right of appeal apart from statute and as establishing novel concepts of 'pure law' and liberal interpretation, creating an apparent internal tension the Court itself addresses
Textual errors in the judgment include references to 'Acts of 1973 and 1888' and repeated misnumbered/misdated provisions, e.g. the Supreme Court of Judicature Act 1873 cited as '1973' in one passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeru v Republic [1979] KECA 26 (KLR)", Case Analysis (1979). Criminal Appeal (jurisdictional objection raised on appeal from Misc Criminal Application No 4 of 1979). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/26/eng@1979-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.