SGS Kenya Limited v Energy Regulatory Commission & 2 others [2018] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal allowed SGS Kenya to take a tribunal precedent question to the Supreme Court, but refused to halt the tender process while that appeal proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether certification and leave to appeal to the Supreme Court should be granted on the two questions concerning the doctrine of precedent and quasi-judicial tribunals
Certification granted. The question whether tribunals such as the Public Procurement Administrative Review Board are bound by their prior decisions, and whether failure to give reasons for departing from them is irrational, are matters of general public importance transcending the parties' interests and fit for the Supreme Court.
Applying the Steyn and KPAWU principles, the Court found the issues transcend the particular case and bear on the public interest. It noted that whether tribunals are bound by stare decisis is debatable and unsettled in Kenya. Although the issue of Article 47 could not be certified because it was never litigated below, the two narrow questions identified by the applicant were properly before the Court and befit the Supreme Court's determination.
Whether the Court of Appeal can stay its own judgment pending an intended appeal to the Supreme Court
It cannot. Once the Court of Appeal delivers final judgment it becomes functus officio, absent statutory authority; the proper forum for stay is the Supreme Court.
The Court relied on its own decision in Dickson Muricho Muriuki, reasoning that the functus officio principle is grounded on public policy favouring finality of proceedings. It also noted the second stay limb was flawed in targeting a different tender number from that litigated, and that an appellate court has no original jurisdiction to stay a tender award.
Whether Article 163(4) jurisdiction of the Supreme Court may be founded on Article 47 and the Fair Administrative Action Act where those provisions were never litigated below
No. The mere clothing of an intended appeal as a question of constitutional interpretation or application does not confer jurisdiction; issues not canvassed in the courts below cannot ground a Supreme Court appeal.
The Court observed that Article 47 and the Fair Administrative Action Act were not subjects of interpretation or litigation before the High Court or Court of Appeal, citing Peter Oduor Ngoge and Hassan Ali Joho on the requirement that issues undergo examination in all lower courts, and Rutongot Farm on the limits of constitutional clothing.
Legal principles established
#- After the Court of Appeal pronounces final judgment it is functus officio and has no jurisdiction to stay its own judgment pending certification and an intended appeal to the Supreme Court; any such application for stay must be made to the Supreme Court.
- An issue that was neither canvassed before nor determined by the High Court or the Court of Appeal cannot become a matter of general public importance warranting the Supreme Court's appellate jurisdiction under Article 163(4)(b).
Court orders
#- 1.Leave granted to the applicant to move to the Supreme Court in the intended appeal against the judgment of the Court of Appeal in Civil Appeal No. 341 of 2017 delivered on 11th May 2018, specifically on the two certified questions
- 2.No stay order granted; both limbs of the stay application declined
- 3.Each party to bear its own costs in this application
- On appeal from
- High Court
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification and leave to appeal to the Supreme Court); inherent/appellate jurisdiction of the Court of Appeal over stay of its own judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SGS Kenya Limited v Energy Regulatory Commission & 2 others [2018] KECA 39 (KLR)", Case Analysis (2018). Civil Application No. SUP. 167 of 2018 (UR 136/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/39/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.