Judicial Service Commission & another v Rawal
The bottom line
#Kenya's Court of Appeal ruled that appeals in constitutional and rights cases come directly from the Constitution, not from any statute.
What this practically means
#Executive summary
#Key legal issues
#Whether Article 164(3) confers a right of appeal as well as jurisdiction
Yes - the right of appeal is subsumed in Article 164(3); the Constitution directly conferred jurisdiction on the Court of Appeal and kept Parliament out of the conferment of the right of appeal.
All five judges read the Constitution holistically: Article 163(4)(a) makes appeals from the Court of Appeal to the Supreme Court lie as of right on interpretation or application of the Constitution, which presupposes a right of appeal from the High Court to the Court of Appeal. Denying the right would render the High Court final on the Bill of Rights, deny access to the appellate courts, and render the Bill of Rights an empty promise.
Effect of section 3(1) of the Appellate Jurisdiction Act
Section 3(1) is superfluous and overridden by Article 164(3) to the extent that it restricts appeals to cases in which an appeal lies under any law.
The 2010 Constitution deliberately removed from Parliament the task of conferring jurisdiction and the right of appeal. Section 3(1)'s restrictive wording reflected the former section 64(1) model; under Article 2 the Constitution prevails over inconsistent statute.
Whether Anarita Karimi Njeru remains good law on the right of appeal
Anarita was properly decided in its pre-2010 context but is not authority under the 2010 Constitution; the mantra that there is no right of appeal without express statutory conferment had been quoted out of context.
Kiage JA traced the two forms of conferment of appellate jurisdiction and showed Anarita addressed a constitutional order where the Court of Appeal's jurisdiction depended on statute. Under the 2010 Constitution jurisdiction flows from the Constitution itself, expanding rather than constricting appeals.
Distinction between jurisdiction to interpret and apply the Constitution and jurisdiction to enforce the Bill of Rights
The 2010 Constitution maintains the distinction - the High Court retains original jurisdiction to enforce the Bill of Rights under Articles 22, 23(1) and 165(3)(b) - but that does not oust the Court of Appeal's appellate jurisdiction.
Otieno-Odek JA held that Article 165(3)(b) vests original jurisdiction in the High Court but, taken in context, does not restrict or oust the Court of Appeal's appellate jurisdiction; all Articles in the Bill of Rights remain justiciable and amenable to appellate interpretation subject to Articles 24 and 25.
Whether an express statutory right of appeal exists on Bill of Rights enforcement
Otieno-Odek JA identified section 9(5) of the Fair Administrative Action Act, underpinned by Article 47(3)(a), as an express statutory right of appeal to the Court of Appeal on enforcement of the Bill of Rights.
The respondent's petition was grounded inter alia on Article 47; the Fair Administrative Action Act applies to rights and fundamental freedoms, applies retroactively to pending proceedings under section 14, and confers the right of appeal from the High Court sitting as a judicial review court.
Legal principles established
#- Article 164(3) of the Constitution confers on the Court of Appeal both jurisdiction to hear appeals from the High Court and the right of appeal in matters involving the Bill of Rights and the interpretation or application of the Constitution.
- Anarita Karimi Njeru and the line of authority that there is no right of appeal apart from statute are confined to the pre-2010 constitutional and statutory framework and are not authority under the 2010 Constitution.
- Section 3(1) of the Appellate Jurisdiction Act is overridden by Article 164(3) of the Constitution to the extent of its restrictiveness and superfluity.
Court orders
#- 1.The applicants' notice of motion dated 23rd December 2015 seeking to strike out the respondent's notice of appeal is dismissed.
- 2.No orders as to costs.
- 3.The hearing of the respondent's notice of motion dated 17th December 2015 and the appeal shall be fast-tracked.
- On appeal from
- High Court of Kenya, Nairobi
- Petition No. 386 of 2015
- Jurisdiction invoked
- Article 164(3) of the Constitution; rule 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission & another v Rawal", Case Analysis (2016). Civil Application 308 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/831/eng@2016-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.