Madhupaper International Ltd v Attorney General & 5 others [1993] KECA 60 (KLR)
The bottom line
#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 entertain an application arising from a decision of the High Court given in the exercise of its jurisdiction under section 84 of the Constitution (preliminary objection)
- 2.Whether the decision of 15th February 1993 dismissing the recusal application was a final order barring an appeal
- 3.Whether Anarita Karimi Njeru v Republic No 2 was wrongly decided and, if so, whether a Bench of five judges should be convened to depart from it
Key legal issues
#Power of the Court of Appeal to depart from its own precedent
The Court accepted the principle, drawn from Dodhia and the authorities cited by counsel, that as the final court it may depart from its own previous judgment in the interest of justice, and that such a departure should be undertaken by a full Bench of five judges
Counsel for the applicant argued that two Court of Appeal decisions undermined Anarita Karimi Njeru, invoking Dodhia on the court's duty to follow the law as it finds it and Sheikh Mohamed Bashir on professional obligation to raise the point. The respondent, though initially supporting the preliminary objection, conceded a five-judge Bench should be convened given the indefinite adjournment of the superior court proceedings. The Court found the point to be of considerable public interest and declined to decide it with three judges, instead directing the Chief Justice to convene a five-judge Bench.
Legal principles established
#- Where a point of considerable public interest is raised inviting the Court to depart from its previous judgment, the Chief Justice should convene a Bench of five judges to give a binding decision
- As the final court, the predecessor Court of Appeal was entitled to depart from its own previous judgment in the interest of justice
Court orders
#- 1.The Court called upon the Chief Justice, as a matter of urgency, to convene a Bench of five judges or as he may deem fit to hear the application and come up with a binding decision
- 2.Costs on the preliminary point to be costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of this Court (stay of proceedings) and rule 39(b) (leave to appeal); the underlying dispute arose under sections 82 and 84 of the Constitution
Relief refused
#Immediate determination by this three-judge Bench of the contention that Anarita Karimi Njeru was wrongly decided and that a right of appeal lies under section 84
The Court held the point was of considerable public interest requiring thorough research and a larger Bench
Costs
Costs on this preliminary point to be costs in the application
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 therefore call upon the Chief Justice, as a matter of urgency, to convene a Bench of five judges or as he may deem fit to hear this application and come up with a binding decision.
Costs on this preliminary point to be costs in the application
The Court held that since it was the final Court, appeals to the Privy Council having stopped, it was entitled to depart from its previous judgment in the interest of justice.
Some day either the Legislature will ponder the issue or a full Bench will grapple with it. That “some day” can be tomorrow”.
Issues in the judgment
#The judgment records inconsistent numbering for the Ramesh K Menon appeal, citing it both as Civil Appeal No 19 of 1981 and later as 'C A 19 of 1983 (unreported)'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Madhupaper International Ltd v Attorney General & 5 others [1993] KECA 60 (KLR)", Case Analysis (1993). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/60/eng@1993-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.