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Court of AppealDismissedCivil Appeal (arising from Constitutional Petition, High Court Constitutional & Human Rights Division)· [2020] KECA 427 (KLR)

Kenya Hotel Properties Limited v Attorney General & 5 others

Court of Appeal of Kenya
7 August 2020
6,368 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that Kenyan courts cannot reopen its own concluded judgments, even where a judge was later removed from office.

What this practically means

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Executive summary

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This appeal, heard together with a second application for review in Civil Appeal No. 149 of 2007, arose from a two-decade-old land dispute. Willesden obtained mesne profits and damages for trespass against the appellant in HCCC No. 367 of 2000; the Court of Appeal reduced the award on 2nd April 2009, and later corrected the interest start date on review. After O'Kubasu JA, who sat on that appeal, was removed by the Judges and Magistrates Vetting Board, the appellant petitioned the High Court for declarations that the 2009 judgment was a nullity for judicial bias, certiorari to quash it, and a retrial de novo. Chacha Mwita, J dismissed the petition for want of jurisdiction. The Court of Appeal (Makhandia, Kiage and Murgor, JJ.A) affirmed. Holding that Article 165(6) denies the High Court supervisory jurisdiction over superior courts, the Court found it unthinkable that the High Court could quash a Court of Appeal judgment or direct its rehearing; any declaration without jurisdiction is a nullity. The Vetting Board made no finding of bias against O'Kubasu JA, and the judgment was that of a three-judge bench; vetted-out judges' judgments are not ipso facto void. The Court also held, as a point of principle, that there is no right of second review, review being exceptional and constricted to the Manchester Outfitters parameters. Both the appeal and the review application were dismissed with costs.

Key legal issues

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01

Whether the High Court could entertain a petition seeking to nullify a Court of Appeal judgment

Holding

It could not; the High Court cannot supervise superior courts, and any declaration by a court without jurisdiction is a nullity.

Reasoning

Article 165(6) expressly confines the High Court's supervisory jurisdiction to subordinate courts. In a hierarchical system, the High Court cannot quash, annul or reverse the decision of its elder sibling, nor direct the Court of Appeal to reopen a concluded appeal. The learned Judge correctly declined jurisdiction, and once jurisdiction was found wanting it was proper for him not to pronounce on the merits, since any such pronouncement would be futile and a nullity.

p. 8
02

Whether removal of O'Kubasu JA by the Vetting Board rendered Civil Appeal No. 149 of 2007 void for judicial bias

Holding

No. The Vetting Board made no finding of bias; unsuitability for office is not equivalent to bias, and the judgment was that of a three-judge bench.

Reasoning

The Board's determination rested on more than this one appeal and found a lack of capacity for objective reasoning, not bias. No application for recusal was ever made. The Vetting Board's decision, being neither a judicial pronouncement nor by a superior body, could not bind the Court in a judicial adjudicatory sense. Holding vetted-out judges' judgments void would unsettle the jurisprudence of the Court and undermine numerous judgments.

p. 11
03

Whether a second application for review of a concluded appeal is competent

Holding

It is not. Review of this Court's decisions is exceptional, constricted, and there can be no second review of a judgment already reviewed.

Reasoning

The review jurisdiction is not even provided for in the Court's rules and is exercised sparingly under inherent powers, confined to the parameters identified in Manchester Outfitters. Allowing parties to relitigate concluded appeals through endless reviews would make a travesty of the Court's appellate character and strike a fatal blow at the doctrine of finality. The appellant had already had one review determined on the merits.

p. 10
04

Whether the learned Judge erred in not pronouncing on the merits after finding want of jurisdiction

Holding

He did not err; a court without jurisdiction must down tools immediately.

Reasoning

Once the Judge found he lacked jurisdiction, the logical course was to make no findings on the merits. It would defeat the meaning of want of jurisdiction for a judge to pronounce on matters he is not authorised to pronounce upon; such pronouncement would be futile and a nullity. The Owners of the Motor Vessel Lillian's v Caltex Oil establishes that jurisdiction is everything and a court downs tools the moment it finds it lacks jurisdiction.

p. 9

Legal principles established

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  • The High Court has no supervisory jurisdiction over superior courts and cannot quash, annul, set aside or direct a rehearing of a Court of Appeal judgment
  • Court of Appeal decisions bind the High Court and all courts equal or inferior to it
  • There is no right of second review of a judgment of the Court of Appeal; review is exceptional and to be sparingly exercised
  • Judgments of judges later removed through the vetting process are not ipso facto null and void; removal by the Vetting Board does not, without a finding of bias, vitiate the judgments they participated in

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The application for review in Civil Appeal No. 149 of 2007 is dismissed
  3. 3.Costs to the respondents
On appeal from
High Court of Kenya, Constitutional & Human Rights Division
Constitutional Petition filed 16th October 2015 (before Chacha Mwita, J)
Jurisdiction invoked
Appeals from the High Court under Article 164(3) of the Constitution; the judgment also turns on Article 165(6) (High Court's lack of supervisory jurisdiction over superior courts)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Hotel Properties Limited v Attorney General & 5 others", Case Analysis (2020). Civil Appeal (arising from Constitutional Petition, High Court Constitutional & Human Rights Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/427/eng@2020-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.