Muiruri v Credit Bank Limited & 2 others (Civil Appeal 203 of 2006) [2008] KECA 263 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed there is no separate Constitutional Court, and the High Court cannot review Court of Appeal decisions.
What this practically means
#Executive summary
#Key legal issues
#Whether a 'Constitutional Court' exists in Kenya
No such court exists; the Constitution establishes only the High Court and subordinate courts, and the Constitutional and Judicial Review Division is a mere administrative division, not a court superior to a single High Court judge
The court examined the Judicature provisions of the former Constitution: section 60 establishes the High Court with unlimited original jurisdiction, section 64 the Court of Appeal, sections 65 and 66 subordinate courts. No provision establishes a Constitutional Court. Section 67 speaks of the High Court, not a Constitutional Court, and section 84 speaks of applications to the High Court. The Chief Justice could only create a division as an administrative act for cause-list management, not a court. Any decision of a court regarding itself as a Constitutional Court with review powers over concurrent or superior decisions is a nullity.
Whether Nyamu J correctly raised and considered the jurisdictional point suo motu
The Court held Nyamu J erred: having declined jurisdiction over the matter before him, he could not go on to consider generally whether a constitutional challenge to a Court of Appeal decision was entertainable; the issue was extraneous to the dispute
The court found the judge's jurisdictional discourse was raised for reasons outside the dispute between the parties, apparently to answer his critics and popularise his views about his division's powers. If such views gained currency, confusion and disharmony among High Court judges would ensue, and an absurd appellate loop would be created in which Court of Appeal decisions would be reviewable by the High Court with appeals returning to the Court of Appeal indefinitely.
Whether the appellant could revive concluded litigation through a constitutional application
He could not; the doctrine of finality precludes such an approach and there is neither constitutional nor statutory authority for it
Relying on the five-judge decision in Jasbir Singh Rai, the court held public policy demands an end to litigation. Omolo JA's reasoning showed there is no provision in the Appellate Jurisdiction Act equivalent to section 80 of the Civil Procedure Act permitting this Court to re-open its decisions, nor can a party take an injury from a Court of Appeal decision back to the High Court to reverse it, creating an absurd loop. Bosire JA's supporting remarks emphasised that the Court of Appeal is the final court in Kenya and the doctrine of finality is based on public interest.
Legal principles established
#- There is no separate Constitutional Court in Kenya; any single judge of the High Court has jurisdiction to handle a constitutional question, and the Constitutional and Judicial Review Division is merely an administrative division of the High Court
- The High Court has no jurisdiction whatsoever to review decisions of the Court of Appeal; a decision purporting to do so is a nullity
- A court without jurisdiction cannot make any valid order; jurisdiction is foundational
- Neither the Chief Justice nor any judge had jurisdiction to entertain an application seeking to challenge a concluded decision of a court of competent jurisdiction where no constitutional or statutory right of appeal or review exists
- Procedural aspects of a judicial decision are integral to it and are not severable for separate constitutional challenge
Court orders
#- 1.The appeal is dismissed with costs to the respondents, to be paid by the appellant
- On appeal from
- High Court of Kenya
- Motion within Miscellaneous Application No. 1382 of 2003 (OS)
- Jurisdiction invoked
- Appeal from the High Court under the Appellate Jurisdiction Act; underlying constitutional application brought under sections 70(a) and 77(9) and section 84 of the former Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muiruri v Credit Bank Limited & 2 others (Civil Appeal 203 of 2006) [2008] KECA 263 (KLR)", Case Analysis (2008). Civil Appeal arising from Miscellaneous Application No. 1382 of 2003 (OS) and the motion before Nyamu J. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/263/eng@2008-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.