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Court of AppealDismissedCivil Application No. SUP 3 of 2013· [2015] KECA 709 (KLR)

Daniel Ng’ang’a Kiratu v Samuel Mburu Kiratu [2015] KECA 709 (KLR)

Court of Appeal of Kenya
22 May 2015
878 words in judgment
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The bottom line

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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

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Executive summary

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The applicant, Daniel Ng'ang'a Kiratu, sought leave under Rule 22(1) of the Supreme Court of Kenya Rules to appeal to the Supreme Court against the Court of Appeal's dismissal of his appeal in Civil Appeal No. 58 of 2006 (delivered 6 November 2009), which had itself affirmed the High Court's dismissal of his trust claim over land reference NYANDARUA/MELANGINE/1631 held by his brother, the respondent. Before the motion was heard, the respondent raised a preliminary objection on jurisdiction, arguing that the judgment sought to be challenged predated the Constitution of Kenya 2010, so the applicant could not invoke Article 163(4)(b), and that the Court was bound by the Supreme Court's decisions under Article 163(7). The respondent relied on Samuel Kamau Macharia v Kenya Commercial Bank, in which the Supreme Court held that Article 163(4)(b) is forward-looking and confers no appellate jurisdiction over matters finalised by the Court of Appeal before the Constitution commenced. The applicant's counsel acknowledged that authority but proceeded on instruction. The Court upheld the objection, holding it fell squarely within the Mukhisa Biscuits criteria as a pure point of law, and dismissed the notice of motion with costs to the respondent. The decision reaffirms that pre-2010 final appellate decisions cannot be appealed to the Supreme Court and that the Court of Appeal is bound to obey the Supreme Court on that question.

Key legal issues

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01

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

Holding

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).

Reasoning

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.

p. 2
02

Whether the preliminary objection satisfied the Mukhisa Biscuits criteria

Holding

Yes; it was a pure question of law capable of disposing of the motion at that stage without recourse to facts.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is upheld
  2. 2.The notice of motion dated 22nd February 2013 is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 163(4)(b)
  • Constitution of Kenya 2010Article 163(7)
  • Supreme Court of Kenya RulesRule 22(1)

Cases cited (2)

  • Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 Others
    [2012] EKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.