Kenya Hotel Properties Limited v Attorney General & 5 others
The bottom line
#Supreme Court refuses to reopen a 2009 ruling because a judge was later removed from office.
What this practically means
#Kenya Hotel Properties tried to stop enforcement of a 2009 Court of Appeal decision, arguing that one of the three judges who decided the case was later removed from office by the Judges and Magistrates Vetting Board. The Supreme Court rejected this argument. It said that final judgments cannot be reopened just because a judge was later removed. The court also found that the legal test for stopping enforcement was not met. The stay application was dismissed with costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) to determine the appeal.
- 2.Whether the applicant has met the test for grant of stay orders pending appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal arising from a constitutional petition that was dismissed by the High Court and Court of Appeal for lack of jurisdiction.
The Supreme Court has jurisdiction because the appeal raises questions concerning the constitutional mandate of the High Court and Court of Appeal to determine violations of constitutional rights, which involves the interpretation and application of the Constitution.
The court noted that the applicant's case required the High Court to determine whether there were violations of constitutional rights, specifically the right to a fair hearing. The High Court declined jurisdiction, and the Court of Appeal agreed. The Supreme Court held that this very fact—that both lower courts considered and declined jurisdiction on constitutional grounds—vests the Supreme Court with jurisdiction under Article 163(4)(a) to determine whether those decisions were made outside their constitutional mandates. The court distinguished this from a mere appeal on the merits of the civil dispute, which would not fall under its jurisdiction.
Whether a judgment of the Court of Appeal can be set aside on the ground that one of the judges who rendered it was subsequently removed from office by the Judges and Magistrates Vetting Board.
A judgment of the Court of Appeal cannot be set aside solely because one of the judges who participated in it was later removed by the Vetting Board. The Vetting Board's decisions are not judicial pronouncements and cannot be elevated to override final court decisions.
The court reasoned that the Court of Appeal's judgment in Civil Appeal No 149 of 2007 was rendered by a panel of three judges, only one of whom (Okubasu, JA) was removed by the Vetting Board. No finding of bias was made by the Board against him or the other judges. The court held that allowing such a proposition would 'turn our judicial system on its head' and 'unsettle the jurisprudence of this court.' The court emphasized that the Vetting Board's decisions are not supra-judicial pronouncements and cannot be used to nullify final court decisions. The proper remedy for a party alleging a violation of fair hearing lies elsewhere, not in reopening a final judgment.
Whether the applicant met the test for grant of stay orders pending appeal.
The applicant failed to meet the test for stay orders because the appeal was not arguable, the appeal would not be rendered nugatory, and public interest did not favour granting the stay.
The court found that the appeal was not arguable because the applicant sought to reopen a final judgment of the Court of Appeal from 2009, which no court has jurisdiction to do. The court also found that the applicant had not shown that the respondent would be unable to repay the bank guarantee amount if the appeal succeeded, so the appeal would not be rendered nugatory. Finally, the court noted that the applicant had engaged in 'judicial musical chairs' for over a decade, and public interest favoured finality in litigation.
Legal principles established
#- The High Court cannot reopen or overturn final decisions of the Court of Appeal, even if a judge who participated was later removed by the Vetting Board.
- A concurring opinion of a single judge does not count as binding precedent over the majority decision of the court.
- To get a stay order from the Supreme Court, the applicant must prove the appeal is arguable, would be rendered nugatory without a stay, and that public interest favors the stay.
- Decisions of the Judges and Magistrates Vetting Board are not judicial pronouncements and cannot be used to nullify final court judgments.
- An appeal is not arguable if it seeks to reopen a final judgment that no court has jurisdiction to disturb.
Court orders
#- 1.The notice of motion dated September 23, 2020 is hereby dismissed.
- 2.The applicant shall pay the costs thereof.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No 404 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution of the Judgment and orders issued by the Court of Appeal in Civil Appeal No 149 of 2007
The appeal is not arguable; the applicant has not demonstrated that the appeal would be rendered nugatory; and public interest does not favour granting the stay.
Calling up of a Bank Guarantee No DBK2007/030 issued by Development Bank of Kenya Limited for Kshs 70,902,400.00
The applicant has not shown that the respondent is unable to repay the guaranteed amount; the appeal can continue without the bank guarantee being in place.
Costs
The applicant shall pay the costs thereof.
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.
The notice of motion dated September 23, 2020 is hereby dismissed.
the High Court which we are certain has no jurisdiction to reopen cases finalized by the apex Court (the Court of Appeal at the time and this court, today).
the Vetting Board's decisions cannot and should never be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a Judge who was removed for impropriety by it.
the applicant has not told us why a concurring opinion should bear more weight than the decision of the majority.
The applicant shall pay the costs thereof.
Key timeline
#Practical implications
#Finality of Appeal Court decisions
Do not advise clients to challenge a final Court of Appeal judgment based solely on a judge's subsequent removal by the Vetting Board. The Supreme Court has closed that door. Instead, explore other remedies such as a review based on bias proven at the time of the decision, or a constitutional petition alleging a violation of fair hearing that does not seek to reopen the final judgment.
Long-running disputes end here
If you have a final Court of Appeal judgment against you, do not rely on a judge's later removal to reopen the case. The Supreme Court has made clear that such an argument will fail. Focus on compliance or alternative dispute resolution. The court also noted that engaging in 'judicial musical chairs' for over a decade does not favour a stay of execution.
Don't rely on judge removal to overturn rulings
If you lost a case in the Court of Appeal years ago, you cannot get that decision overturned just because one of the judges was later found unfit. The Supreme Court says that would destroy the finality of court decisions. Your only option is to show actual bias in the original hearing, not the judge's later removal.
Frequently asked questions
#Can a Court of Appeal judgment be set aside because a judge was later removed in Kenya?+
No. The Supreme Court has ruled that a final judgment cannot be reopened just because one of the judges was later removed by the Judges and Magistrates Vetting Board. The board's decision is not a judicial pronouncement that overrides the final court decision.
What is the test for getting a stay of execution in the Supreme Court of Kenya?+
You must show that your appeal is arguable (not frivolous), that the appeal would be rendered useless if the stay is not granted, and that granting the stay is in the public interest. The Supreme Court applies the test from the Gatirau Peter Munya case.
Does the Supreme Court have jurisdiction to hear an appeal from a constitutional petition dismissed by lower courts in Kenya?+
Yes, if the appeal raises questions about the constitutional mandate of the High Court and Court of Appeal. The Supreme Court has jurisdiction under Article 163(4)(a) to determine whether the lower courts acted outside their constitutional mandates, even if the petition itself was dismissed.
What is the effect of a concurring opinion in a Kenyan court?+
A concurring opinion of a single judge is not binding precedent. The majority decision of the court is the one that counts. The Supreme Court made this clear when the applicant tried to rely on a concurring opinion to argue that the main judgment was flawed.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others[2026] KESC 49 (KLR)3 Jul 2026
- Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR)[2026] KEELC 3522 (KLR)10 Jun 2026
- Ochula v Erot (Sued as a Legal Representative of the Estate of Okiru Erot (Deceased)) (Environment and Land Appeal E029 of 2024) [2025] KEELC 7226 (KLR)[2025] KEELC 7226 (KLR)23 Oct 2025
- Okello & 2 others v Fin Tea Limited & another (Civil Appeal (Application) E053 of 2024) [2025] KECA 1099 (KLR)[2025] KECA 1099 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotel Properties Limited v Attorney General & 5 others", Case Analysis (2020). Application 27 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/6/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.