Daniel Ng’ang’a Kiratu v Samuel Mburu Kiratu [2015] KECA 709 (KLR)
The bottom line
#The Court of Appeal confirmed that final decisions made before Kenya's 2010 Constitution cannot be appealed to the Supreme Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Supreme Court's appellate jurisdiction under Article 163(4)(b) extends to matters finalised before the Constitution of Kenya 2010 came into force
It does not; Article 163(4)(b) is forward-looking and the Court of Appeal cannot entertain an application for leave in respect of a pre-2010 final appeal, being bound by S. K. Macharia under Article 163(7).
The respondent raised a preliminary objection that the judgment sought to be appealed was delivered before the Constitution of Kenya 2010 came into force. Relying on the Supreme Court's decision in Samuel Kamau Macharia v Kenya Commercial Bank, the Court held that the Supreme Court itself had answered the question, finding that final judgments vesting property rights before the Constitution cannot be reopened. The Court of Appeal, bound by Article 163(7), upheld the objection and dismissed the motion.
Whether the preliminary objection satisfied the Mukhisa Biscuits criteria
Yes; it was a pure question of law capable of disposing of the motion at that stage without recourse to facts.
The Court applied the classic test that a preliminary objection must rest on a pure point of law which, if proved, may dispose of the suit. The jurisdictional objection depended solely on the temporal operation of Article 163(4)(b) as construed by the Supreme Court, requiring no factual enquiry, and therefore disposed of the notice of motion summarily.
Legal principles established
#- Article 163(4)(b) of the Constitution of Kenya 2010 does not confer appellate jurisdiction on the Supreme Court over matters finalised by the Court of Appeal before the Constitution commenced, and the Court of Appeal is bound by that holding under Article 163(7).
Court orders
#- 1.The preliminary objection is upheld
- 2.The notice of motion dated 22nd February 2013 is dismissed with costs to the respondent
- On appeal from
- Court of Appeal at Nakuru
- Civil Appeal No. 58 of 2006
- Jurisdiction invoked
- Application for leave to appeal to the Supreme Court under Rule 22(1) of the Supreme Court of Kenya Rules; preliminary objection on jurisdiction under Article 163(4)(b) and Article 163(7) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Ng’ang’a Kiratu v Samuel Mburu Kiratu [2015] KECA 709 (KLR)", Case Analysis (2015). Civil Application No. SUP 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/709/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.