Koinange Investment & Development Limited v Ngethe
The bottom line
#Leave to appeal to Supreme Court must first be sought from the Court of Appeal.
What this practically means
#A company wanted to appeal to the Supreme Court but was told by the Registrar to first get permission from the Court of Appeal. The company argued the Registrar overstepped her authority. The Supreme Court disagreed, saying the Registrar correctly applied the rule that such applications should start at the Court of Appeal. The Court also noted that its earlier orders were only directions, not binding orders. The case was dismissed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Ag Registrar of the Supreme Court had the power to issue orders directing the Applicant to seek leave from the Court of Appeal, thereby overriding directions given by two Judges of the Supreme Court on 3/7/2012.
Key legal issues
#Whether the Ag Registrar of the Supreme Court had jurisdiction to direct the Applicant to seek leave from the Court of Appeal, overriding prior directions of two Supreme Court Judges.
The Ag Registrar acted within her powers because the prior directions were merely directory and not substantive orders; she correctly applied the Supreme Court's settled jurisprudence that leave applications should first be made to the Court of Appeal.
The Court found that the orders of 3/7/2012 were directory and did not mandate that the full Court hear the application. The Ag Registrar, in directing the Applicant to seek leave from the Court of Appeal, was merely restating the clear position established by the Supreme Court in Sum Model Industries and other cases. While the Registrar cannot disregard express court orders, she can state the correct legal position. The Court also noted that no injustice would result as the Applicant had already filed a similar application before the Court of Appeal.
Whether the Supreme Court or the Court of Appeal has jurisdiction to hear an application for leave to appeal under Article 163(5) of the Constitution.
Both courts have concurrent jurisdiction, but as a matter of good practice, such applications should first be made to the Court of Appeal, which is better placed to determine whether a matter involves a point of general public importance.
The Court relied on its earlier decisions in Sum Model Industries, Lawrence Nduttu, and SK Macharia to hold that while both courts have concurrent jurisdiction, the proper practice is for the application to originate in the Court of Appeal. If the applicant is dissatisfied with the Court of Appeal's decision, they may seek review under Article 163(5). This ensures the Court of Appeal, as the court that heard the substantive appeal, can properly assess whether the matter raises a point of general public importance.
Legal principles established
#- Leave to appeal to the Supreme Court under Article 163(5) should first be made to the Court of Appeal as a matter of good practice.
- The Registrar of the Supreme Court can state the correct legal position but cannot disregard express court orders.
- Directory orders do not require the full court to hear the matter; the Registrar can enforce them.
- Both the Supreme Court and Court of Appeal have concurrent jurisdiction over leave applications, but the Court of Appeal is better placed to assess general public importance.
- A party unhappy with the Court of Appeal's decision on leave may seek review under Article 163(5).
Court orders
#- 1.The application for review, discharge and setting aside of the Ag Registrar's orders of 11/10/2012 is dismissed.
- 2.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya (Ag Registrar)
- Jurisdiction invoked
- Article 163(5) of the Constitution
Relief refused
#Review, discharge and set aside the orders of the Ag Registrar issued on 11/10/2012
The Ag Registrar's orders were correct in law and consistent with the Supreme Court's decisions in Sum Model Industries and other cases; no injustice would be occasioned as the Applicant has lodged a similar application before the Court of Appeal.
Directions to have the Notice of Motion dated 19/4/2012 fixed for hearing before the Supreme Court
The application for leave should originate in the Court of Appeal as a matter of good practice, and the Applicant has already lodged a similar application there.
Costs
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.
This application fails and is accordingly dismissed. I make no order as to costs.
The Registrar cannot usurp the powers of the Court and cannot disregard express orders of the Court. In this instance, the Ag Registrar, I would think, should not be villified or condemned for stating the obvious and the correct position in law.
an application for leave, as a matter of good practice, should originate in the Court of Appeal, which would be better placed to certify whether a matter is of general public importance is involved
The orders made by this Court on 3/7/2012 are very clear. Nowhere is it stated that the Court shall hear the application. The orders so made are merely directory and could be enforced by the Ag Registrar.
Key timeline
#Practical implications
#Filing leave applications correctly
Always file leave-to-appeal applications under Article 163(5) first in the Court of Appeal, even if Supreme Court judges give directory orders that seem to allow direct filing. The Registrar can and will redirect you. If the Court of Appeal denies leave, you may then seek review in the Supreme Court.
Exhaust lower court remedies
Before appealing to the Supreme Court, you must first get permission from the Court of Appeal. Skipping this step leads to dismissal and delays. Ensure your legal team follows the proper hierarchy: Court of Appeal first, then Supreme Court if the Court of Appeal denies leave or if the matter involves a point of general public importance.
Understand appeal routes
If you want to take a case to the Supreme Court, you usually need to ask the Court of Appeal first for permission. The Supreme Court will not hear your case directly unless the Court of Appeal says it involves a major legal question. Always follow the steps in order to avoid wasting time and money.
Frequently asked questions
#How do I appeal to the Supreme Court of Kenya?+
First, you must get leave (permission) from the Court of Appeal. The Court of Appeal decides if your case involves a point of general public importance. If they deny leave, you can ask the Supreme Court to review that decision. Do not file directly in the Supreme Court.
Can the Registrar of the Supreme Court reject my case?+
Yes, if your case does not follow the correct procedure. The Registrar can direct you to the Court of Appeal if you bypass it. This is not a personal decision but a legal requirement. The Supreme Court has confirmed that the Registrar can state the correct legal position.
What is a point of general public importance in Kenya?+
It is a legal question that affects many people or the public interest, not just the parties in the case. Examples include constitutional interpretation, land rights, or public policy. The Court of Appeal decides if your case raises such a point before you can appeal to the Supreme Court.
What happens if I ignore the Court of Appeal and go to the Supreme Court in Kenya?+
Your application will likely be dismissed. The Supreme Court will send you back to the Court of Appeal to seek leave first. This wastes time and money. Always follow the proper procedure: start at the Court of Appeal for permission to appeal.
Cite this brief
#Cite this brief
Caselaw, "Koinange Investment & Development Limited v Ngethe", Case Analysis (2013). Civil Application 1 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/22/eng@2013-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.