Kenya Hotel Properties Limited v Attorney General & 5 others
The bottom line
#Supreme Court: High Court cannot reopen Court of Appeal cases, even if a judge was later removed.
What this practically means
#The Supreme Court ruled that the High Court has no power to reopen or annul a decision made by the Court of Appeal. Even if one of the judges was later removed for unsuitability, that does not automatically make the judgment invalid, especially when the decision was unanimous. Once a case is finally decided by the highest court at the time, it cannot be reopened through a constitutional petition in a lower court. Litigation must come to an end.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had the jurisdiction to grant reliefs sought by the appellant
- 2.If not, what other remedies are available to the appellant?
Key legal issues
#Whether the High Court had jurisdiction to annul a judgment of the Court of Appeal and order a de novo hearing.
The High Court lacks jurisdiction to supervise or annul decisions of the Court of Appeal, as Article 165(6) of the Constitution limits its supervisory jurisdiction to subordinate courts and bodies, not superior courts.
The Supreme Court affirmed the concurrent findings of the High Court and Court of Appeal that Article 165(6) expressly prohibits the High Court from supervising superior courts. The Court of Appeal is a superior court under Article 162(1), and its decisions bind the High Court under Article 164(3). Granting the orders sought would undermine judicial hierarchy and the rule of law. The Court rejected the appellant's argument that fundamental rights override jurisdictional limits, holding that 'rights can only be adjudicated upon by properly authorized courts' and that a declaration by a court without jurisdiction is a nullity.
Whether the removal of a judge by the Judges and Magistrates Vetting Board automatically nullifies judgments delivered by that judge.
The removal of a judge by the Vetting Board does not automatically nullify judgments delivered by that judge, especially where the judgment was unanimous and the other judges were not impugned.
The Supreme Court held that the Vetting Board's finding of 'a worrying lack of capacity' did not amount to a finding of bias. The judgment in Civil Appeal No 149 of 2007 was a unanimous decision of three judges, and the appellant did not challenge the other two judges. The Court emphasized that Vetting Board decisions cannot be elevated to 'supra-judicial pronouncements' that set aside every decision made by a removed judge. The proper remedy for a litigant alleging violation of fundamental rights by a court decision is to file a constitutional petition before the High Court seeking redress, not to seek annulment of the decision itself.
Whether the principle of finality in litigation bars the re-opening of a concluded appeal through a constitutional petition.
The principle of finality in litigation bars the re-opening of a concluded appeal through a constitutional petition before an inferior court.
The Supreme Court noted that Civil Appeal No 149 of 2007 was conclusively determined on April 2, 2009, and the review judgment on November 20, 2009. The appellant had exhausted its appellate remedies. Allowing the appellant to attack the Court of Appeal judgment through a constitutional petition before the High Court would be 'subversive to the principle of rule of law.' The Court cited its earlier decision in Samuel Kamau Macharia v Kenya Commercial Bank Limited, which declared section 14 of the Supreme Court Act unconstitutional for attempting to confer jurisdiction to review final decisions of removed judges. The Court held that litigation must come to an end.
Legal principles established
#- The High Court cannot supervise or annul decisions of the Court of Appeal under Article 165(6) of the Constitution.
- Removal of a judge by the Vetting Board does not automatically nullify that judge's past unanimous judgments.
- The principle of finality in litigation bars reopening concluded appeals through constitutional petitions in inferior courts.
- Fundamental rights can only be adjudicated by courts with proper jurisdiction; a declaration by a court without jurisdiction is a nullity.
- A litigant alleging rights violations by a court decision must file a constitutional petition for redress, not seek annulment of the decision.
Court orders
#- 1.The petition of appeal dated and filed on August 28, 2020 is hereby dismissed.
- 2.Each party shall bear its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 404 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the Court of Appeal judgment dated April 2, 2009 in Civil Appeal No 149 of 2007 is a nullity and should be set aside
The High Court lacks jurisdiction to supervise or annul decisions of the Court of Appeal, a superior court.
Declaration that the appellant's right to a fair trial under article 50 was infringed by bias of O'Kubasu JA
The Vetting Board did not find bias but 'a worrying lack of capacity'; the judgment was unanimous and the other two judges were not impugned.
Order of certiorari to quash the Court of Appeal judgment in Civil Appeal No 149 of 2007
The High Court cannot issue certiorari against a superior court's decision.
Order directing that the appeal be heard de novo by the Court of Appeal
The High Court cannot direct the Court of Appeal to re-open a concluded appeal.
Permanent injunction restraining execution of the decree in HCCC No 367 of 2000
The High Court lacked jurisdiction to grant any of the reliefs sought; the matter was finally determined.
Costs
Each party shall bear its 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.
the High Court cannot and does not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time.
the decisions by the Vetting Board cannot and should not 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.
the principle of finality in litigation is relevant, more so in this appeal. There must be an end to litigation
The petition of appeal dated and filed on August 28, 2020 is hereby dismissed.
Each party shall bear its costs.
rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.
Key timeline
#Practical implications
#Jurisdiction limits for constitutional petitions
Do not advise clients to file constitutional petitions in the High Court to reopen concluded Court of Appeal judgments. The High Court lacks jurisdiction to supervise superior courts. Instead, if fundamental rights were violated during the appeal, pursue a separate claim for damages or other redress, not annulment of the judgment.
Finality of court decisions protects you
Once a land or commercial dispute is finally decided by the Court of Appeal, that decision stands. Opponents cannot later attack it by claiming a judge was biased or unsuitable, especially if the judgment was unanimous. This ruling protects businesses from endless litigation and gives certainty to concluded cases.
Judge removal doesn't void your case
If a judge who decided your case is later removed for misconduct, that does not automatically overturn the judgment. The decision remains valid unless you can show actual bias that affected the outcome. You cannot use the Vetting Board's findings as a shortcut to reopen a final court decision.
Frequently asked questions
#Can the High Court reopen a Court of Appeal case in Kenya?+
No. The Supreme Court confirmed that the High Court has no jurisdiction under Article 165(6) of the Constitution to supervise or annul decisions of the Court of Appeal. Once the Court of Appeal decides a case, it cannot be reopened in the High Court.
Does a judge's removal nullify their past judgments in Kenya?+
Not automatically. The Supreme Court held that removal of a judge by the Judges and Magistrates Vetting Board does not void judgments they delivered, especially if the decision was unanimous and the other judges were not impugned.
What is the principle of finality in litigation in Kenya?+
It means that once a case has been conclusively determined by the highest court at the time, it cannot be reopened. The Supreme Court emphasized that litigation must come to an end, and reopening appeals through constitutional petitions undermines the rule of law.
How can I challenge a Court of Appeal judgment in Kenya after it is final?+
You cannot challenge it by filing a constitutional petition in the High Court. If you believe your fundamental rights were violated during the appeal, you may seek separate redress (e.g., damages) but not annulment of the judgment. The proper remedy is to appeal to the Supreme Court if grounds exist.
Later judgments citing this (25)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John & another (Suing as Legal Representative of the Estate of Kinaitore Deceased) v Kaburu & 2 others (Environment and Land Case E025 of 2026) [2026] KEELC 5139 (KLR)[2026] KEELC 5139 (KLR)31 Jul 2026applied
- Haji v Khansam Apartments and Management Company Ltd & 3 others (Environment and Land Petition E008 of 2026) [2026] KEELC 4596 (KLR)[2026] KEELC 4596 (KLR)16 Jul 2026followed
- Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)[2026] KEELC 4561 (KLR)9 Jul 2026
- Kathinja v Northern Galaxy Hotel Limited & another (Environment and Land Case E002 of 2026) [2026] KEELC 4402 (KLR)[2026] KEELC 4402 (KLR)9 Jul 2026applied
- Gitari [Suing as the representative in the Estate of the Late Gitari Elias Marete) v Marete (Environment and Land Appeal E064 of 2026) [2026] KEELC 4314 (KLR)[2026] KEELC 4314 (KLR)9 Jul 2026applied
- Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others[2026] KESC 49 (KLR)3 Jul 2026
- Ruto & 67 others v Attorney General & 2 others (Environment and Land Petition E004 of 2025) [2026] KEELC 3743 (KLR)[2026] KEELC 3743 (KLR)18 Jun 2026followed
- Thimangu v Land Registrar (Tigania) & 22 others (Land Case E035 of 2025) [2026] KEELC 3551 (KLR)[2026] KEELC 3551 (KLR)11 Jun 2026applied
- Maru v Wafula (Environment and Land Case 103 of 2008) [2026] KEELC 2376 (KLR)[2026] KEELC 2376 (KLR)29 Apr 2026applied
- Central Kenya Limited v National Land Commission & 7 others (Land Case Petition E017 of 2025) [2026] KEELC 1830 (KLR)[2026] KEELC 1830 (KLR)23 Mar 2026
- Mohamed v Adan & 3 others (Civil Appeal E680 of 2023) [2026] KECA 527 (KLR)[2026] KECA 527 (KLR)13 Mar 2026
- Notice of Motion dated 15.12.2025 (Appellant/Applicant v Respondent) - cancellation of titles Ntima/Igoki/5232 & 5233 and restoration of LR Ntima/Igoki/150419 Feb 2026applied
- Mubichi (Legal Representative of the estate of Patrick Mbichi M’Aburugua ) v Mworia (Environment and Land Case E001 of 2024) [2026] KEELC 884 (KLR)[2026] KEELC 884 (KLR)16 Feb 2026
- Matipe v Murunya & 6 others (Environment and Land Constitutional Petition E001 of 2024) [2025] KEELC 8664 (KLR)[2025] KEELC 8664 (KLR)11 Dec 2025
- Anupi Fashions Limited v Mwea Rice Mills Limited & 2 others (Environment and Land Case 17 of 2020) [2025] KEELC 6066 (KLR)[2025] KEELC 6066 (KLR)17 Sept 2025applied
- Miti Limited & 2 others v Suleiman & 5 others (Environment and Land Case 134 of 2017 & 24 (MERU) of 2025 (Consolidated)) [2025] KEELC 5768 (KLR)[2025] KEELC 5768 (KLR)28 Jul 2025applied
- Karume v Chief Land Registrar & 2 others; Baraza t/a Siuma Auctioneers (Proposed Interested Party) (Environment and Land Case 816 of 2012) [2025] KEELC 5572 (KLR)[2025] KEELC 5572 (KLR)24 Jul 2025applied
- Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party) (Environment and Land Case 4 of 2021) [2025] KEELC 5299 (KLR)[2025] KEELC 5299 (KLR)10 Jul 2025applied
- Defendant/Applicant v Plaintiff/Respondent (Notice of Motion dated 30th May 2025)9 Jul 2025applied
- Mwebia v M’Inoti & another (Enviromental and Land Originating Summons 13 of 2023) [2025] KEELC 4778 (KLR)[2025] KEELC 4778 (KLR)26 Jun 2025applied
- Mwariama & 18 others (Suing on their own behalf of about 3,000 Residents of Timau Area in Buuri West Sub-County) v Commisison & 5 others; Meru County & another (Interested Parties) (Environment and Land Petition E010 of 2020 & Petition 1 of 2022 (Consolidated)) [2025] KEELC 5193 (KLR)[2025] KEELC 5193 (KLR)23 Jun 2025applied
- Mbugua v Kerore & 4 others (Environment and Land Constitutional Petition E005 of 2024) [2025] KEELC 4454 (KLR)[2025] KEELC 4454 (KLR)12 Jun 2025applied
- Kiptui v Kiptiony[2025] KESC 30 (KLR)23 May 2025followed
- Kariuki, Ndegwa and Kibuthu As Secretary, Chair Person & Treasurer of Kiambu County Tenants Welfare Association & 7 others v Kiambu County Executive Committee & 4 others (Constitutional Petition E005 of 2023) [2025] KEELC 2864 (KLR)[2025] KEELC 2864 (KLR)27 Mar 2025followed
- Kubai (Suing as the Legal Administrator/Representative of the Estate of Gabriel Kubai King'ori) v King'ori & 2 others (Sued as the Legal Administrators/Representatives of the Estate of Maria Gatitu King'ori) (Environment & Land Case E019 of 2024) [2025] KEELC 3281 (KLR)[2025] KEELC 3281 (KLR)20 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotel Properties Limited v Attorney General & 5 others", Case Analysis (2022). Petition 16 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/62/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.