Wanyiri Kihoro v Attorney General [2017] KECA 285 (KLR)
The bottom line
#The Court of Appeal refused to let a 1993 case go to the Supreme Court, ruling that appeals cannot revive decades-old judgments simply because enforcement dragged on.
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 application for certification is tenable in view of the delay in filing it
- 2.Whether the intended appeal would succeed on merits, i.e. whether it involves a matter of general public importance
Key legal issues
#Whether the delay of 24 years in filing the certification application could be excused by reliance on the continuation of execution proceedings until 2011
Delay could not be excused; the right of appeal arose in 1993 when final judgment was delivered, and there is no requirement to await completion of execution before challenging a decision. Rule 40(b) requires certification applications within 14 days.
The court rejected the argument that continuity of execution proceedings extended the time for appealing. The right of appeal crystallised on delivery of the final judgment in 1993. Even assuming the 18-year execution process explained part of the delay, no acceptable explanation existed for the further delay between completion of execution in 2011 and filing in May 2016, which the court found to be an afterthought.
Whether the pre-promulgation decision of 1993 could be subjected to a Supreme Court appeal under Article 163(4)(b)
No. The Supreme Court's decision in Samuel Kamau Macharia binds the Court of Appeal: Article 163(4)(b) is forward-looking and does not permit appeals from matters finalized before the Constitution commenced.
The court held itself bound by the Supreme Court's ruling in Samuel Kamau Macharia, which kept at bay all pre-promulgation decisions. The 1993 judgment was finalized long before August 2010, so the Supreme Court has no jurisdiction to entertain the intended appeal regardless of subsequent execution proceedings.
Whether the intended appeal involved a matter of general public importance
It did not. The complaints were centered on findings of fact, and the issues of law raised were not adjudicated in the courts below and were being raised for the first time.
Applying the Hermanus Phillipus Steyn principles, the court found the factual findings of the 1993 appeal could not found certification, and the legal issues touted (emergency powers, sedition laws, detention without trial, the execution process) were tangential and never judicially determined. There was also no claim of uncertainty in the law from contradictory precedents.
Legal principles established
#- Article 163(4)(b) is forward-looking and does not confer appellate jurisdiction on the Supreme Court over matters finalized by the Court of Appeal before the commencement of the 2010 Constitution; certification under Rule 40(b) must be sought within 14 days of the decision.
- A matter of general public importance must transcend the circumstances of the particular case; questions of law must have arisen and been determined in the courts below; determinations of fact and mere apprehension of miscarriage of justice are not bases for certification.
Court orders
#- 1.Application for certification under Article 163(4)(b) dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 151 of 1988
- Jurisdiction invoked
- Application for certification under Article 163(4)(b) of the Constitution for leave to appeal to the Supreme Court
Relief refused
#Certificate that a matter of general public importance is involved in the intended appeal to the Supreme Court
The application was filed 24 years out of time with no acceptable explanation, and the issues raised do not meet the Supreme Court's criteria for general public importance; the pre-promulgation decision cannot be reopened under Article 163(4)(b)
Costs
No order as to costs - considering the antecedents of the matter and the respective positions of the litigants, the court made no order as to costs.
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.
In our view, the right of appeal, which is now sought to be exercised, arose in 1993 when the final judgment was delivered. There is no law or procedure stating that a party must await the completion of the execution process before challenging a decision of a court of law.
Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.
Before this Court, ‘a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest.
Having so found on both issues, it only remains for us to dismiss the application which we now do. Considering the antecedents of the matter and the respective positions of the litigants, we make no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyiri Kihoro v Attorney General [2017] KECA 285 (KLR)", Case Analysis (2017). Civil Application No. SUP 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/285/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.