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Supreme CourtAllowedPetition 14 of 2013

Law Society of Kenya v Centre for Human Rights and Democracy & 12 others

Supreme Court of Kenya
8 April 2014
Smokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguS.N. Ndungu
5,125 words in judgment
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The bottom line

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Supreme Court allowed consolidation of appeals even without a full record of appeal.

What this practically means

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The Law Society of Kenya wanted to combine three appeals about whether the High Court can review decisions of the Judges and Magistrates Vetting Board. Some respondents objected because LSK hadn't filed a record of appeal. The Supreme Court said that for consolidation, only the petition of appeal matters, not the record. The court allowed consolidation to avoid delays and decide the important issue quickly, using Article 159(2)(d) of the Constitution to excuse the missing record.

Executive summary

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This ruling by a two-judge bench of the Supreme Court (Wanjala and Ndungu, SCJJ) determined an application by the Law Society of Kenya (LSK) seeking consolidation of three petitions of appeal (Nos. 13A, 14, and 15) and leave to rely on the record of appeal filed by the 4th respondent instead of filing its own. The appeals arose from a Court of Appeal decision that had dismissed LSK's appeal against a High Court ruling that the High Court had supervisory jurisdiction over decisions of the Judges and Magistrates Vetting Board (JMVB). The central issue in all three appeals was whether section 23(2) of the Sixth Schedule to the Constitution ousts the High Court's jurisdiction to review JMVB decisions. The respondents opposed consolidation, arguing that LSK's failure to file a record of appeal as required by rule 33(1) of the Supreme Court Rules rendered its appeal incompetent and incapable of consolidation. The court rejected this argument, holding that in an application for consolidation, what matters are the petitions of appeal, which disclose the grievances, not the record of appeal. Since LSK had filed a valid petition of appeal disclosing a clear cause of action, the absence of the record was not a barrier to consolidation. The court further held that consolidation would serve the interests of justice by enabling efficient and expeditious disposal of the matter of great public interest. The court also applied Article 159(2)(d) of the Constitution to excuse LSK from filing a duplicate record of appeal, noting that no prejudice would be caused to the respondents. The court ordered consolidation of the three petitions, with Petition No. 13A as the pilot file, and set timelines for filing submissions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the order issued by Hon Justice Ojwang on December 11, 2013 denying the applicant’s prayer number 3 in its entirety renders the application herein incompetent
  2. 2.whether the applicant’s failure to file a record of appeal together with the petition of appeal means there is no appeal capable of being consolidated with any other
  3. 3.whether the Petitions of Appeal Numbers 13A, 14 and 15 should be consolidated

Key legal issues

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01

Whether the applicant's failure to file a record of appeal together with the petition of appeal means there is no appeal capable of being consolidated with any other.

Holding

The absence of a record of appeal does not render an appeal incapable of consolidation, as consolidation concerns the petitions of appeal which disclose the grievances, not the record of appeal.

Reasoning

The court distinguished between the components of an appeal under rule 33(1) of the Supreme Court Rules (petition, record, fee) and the purpose of consolidation. It held that consolidation is about combining causes or grievances disclosed in petitions of appeal. Since the applicant had filed a valid petition of appeal disclosing a clear grievance, the absence of the record of appeal was not a barrier to consolidation at this stage. The court noted that requiring a complete record would defeat the purpose of consolidation, which is to avoid duplication and delay.

p. 10
02

Whether the three petitions of appeal (Nos. 13A, 14, and 15) should be consolidated.

Holding

The petitions should be consolidated because they involve the same parties and the same central issue, and consolidation would serve the interests of justice by facilitating efficient and expeditious disposal.

Reasoning

The court found that all three appeals raised the same central issue: whether section 23(2) of the Sixth Schedule to the Constitution ousts the jurisdiction of the High Court to review decisions of the Judges and Magistrates Vetting Board. The parties were substantially the same. Consolidation would avoid undesirable delays in concluding a matter of great public interest and would allow the central issue to be determined expeditiously and conclusively. The court was satisfied that no injustice would be occasioned to the respondents.

p. 11
03

Whether the order by Hon. Justice Ojwang denying prayer No. 3 rendered the application for consolidation incompetent.

Holding

The denial of prayer No. 3 did not render the application for consolidation incompetent, as the two prayers were distinct and the application before the two-judge bench solely sought the grant of prayer No. 4.

Reasoning

The court explained that prayer No. 3 sought leave to rely on the record of appeal from the Court of Appeal and supplementary records, which was properly denied because that record would not contain the Court of Appeal judgment. Prayer No. 4, which sought consolidation and exemption from duplicating the record, was a separate matter set down for inter partes hearing. The denial of one did not affect the viability of the other.

p. 9

Legal principles established

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  • Consolidation of appeals concerns petitions of appeal, not records of appeal.
  • Absence of a record of appeal does not bar consolidation at the application stage.
  • Article 159(2)(d) can save an appeal from procedural shortfalls on a case-by-case basis.
  • Consolidation is appropriate when appeals involve the same parties and central issue.
  • The purpose of consolidation is to avoid duplication and delay in the interests of justice.

Court orders

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  1. 1.Petitions of Appeal Numbers 13A, 14 and 15 are hereby consolidated.
  2. 2.The applicant herein is hereby allowed to rely on the record of appeal lodged in the Registry by the 4th respondent.
  3. 3.Petition No 13A of 2013 is to serve as the Pilot File in these proceedings.
  4. 4.The appellants are to file their written submissions within 7 days from the date hereof; and the submissions so filed are to be served upon the respondents within 7 days as from the date of filing.
  5. 5.The respondents are to file their written responses within 7 days after service; and the responses so filed are to be served upon the appellants within 7 days of the date of filing.
  6. 6.The appellants are to file and serve any written responses within 7 days from the date of service.
  7. 7.This matter is to be mentioned on April 24, 2014 before the Deputy Registrar of the Supreme Court, to confirm compliance and to fix hearing dates.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority

Wrote the judgment

Njoki Susanna Ndungu
S.N. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 308 of 2012
Jurisdiction invoked
Supreme Court Act, 2011 and Supreme Court Rules, 2012
Consolidated with
Petition No. 13A of 2013, Petition No. 15 of 2013

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It follows, therefore, that in an application for consolidation, what are to be consolidated in an appeal are the petitions of appeal, for it is these that disclose the causes or grievances against the judgment of a lower court.
p. 10 Consolidation of appeals
In answer to the question as to whether there is a competent appeal before us, capable of being consolidated, we must respond in the affirmative, since the petition of appeal filed by the applicant discloses a clear grievance and cause of action, that can be practicably and jointly prosecuted together with that in Petition No 15.
p. 10 Competent appeal for consolidation
Petitions of Appeal Numbers 13A, 14 and 15 are hereby consolidated.
p. 12 Final orders - consolidation
The applicant herein is hereby allowed to rely on the record of appeal lodged in the Registry by the 4th respondent.
p. 12 Final orders - reliance on record

Key timeline

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2013-12-11
Justice Ojwang denies LSK's prayer to rely on the record of appeal from the Court of Appeal.
2014-04-24
Matter to be mentioned before Deputy Registrar to confirm compliance and fix hearing dates.

Practical implications

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For lawyers

Consolidation strategy clarified

When seeking consolidation, focus on filing a valid petition of appeal that clearly states grievances. A missing record of appeal is not fatal at the consolidation stage. Use Article 159(2)(d) to argue for procedural leniency, but be prepared to show that the petition itself is substantive and that consolidation serves efficiency.

For businesses

If your business is involved in multiple appeals on the same issue, you can request consolidation to save time and costs. The court prioritizes efficiency and will overlook minor procedural gaps if the core grievance is clear. Ensure your legal team files a proper petition of appeal early to avoid delays.

For individuals

Access to justice through flexibility

If you miss a procedural step like filing a record of appeal, the court may still allow your case to proceed if you have a valid petition. Article 159(2)(d) of the Constitution lets courts focus on substance over technicalities. However, this is not automatic—you must show that the error does not prejudice others and that your case has merit.

Frequently asked questions

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What is consolidation of appeals in Kenya?+

Consolidation combines two or more appeals into one case to be heard together. This happens when the appeals involve the same parties or legal issues. The goal is to avoid duplication, save time, and ensure consistent decisions. The Supreme Court of Kenya allows consolidation even if one party hasn't filed a full record of appeal.

Can an appeal be consolidated without a record of appeal in Kenya?+

Yes. The Supreme Court ruled that consolidation focuses on the petition of appeal, which states the grievances. A missing record of appeal does not prevent consolidation at the application stage. The court can later order the record to be filed or allow use of another party's record.

What is Article 159(2)(d) of the Kenyan Constitution?+

Article 159(2)(d) says courts should administer justice without undue regard to procedural technicalities. This means courts can overlook minor procedural mistakes if doing so serves substantive justice. In this case, the Supreme Court used it to excuse the Law Society of Kenya from filing a duplicate record of appeal.

How does the Supreme Court of Kenya handle procedural errors in appeals?+

The Supreme Court applies Article 159(2)(d) of the Constitution on a case-by-case basis. It will not automatically excuse all errors. The court considers whether the error is minor, whether it prejudices other parties, and whether the appeal has merit. If so, the court may allow the appeal to proceed despite the procedural shortfall.

Later judgments citing this (25)

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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, "Law Society of Kenya v Centre for Human Rights and Democracy & 12 others", Case Analysis (2014). Petition 14 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/29/eng@2014-04-08

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