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Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 8 of 2020

Law Society of Kenya v Communications Authority of Kenya & 10 others

Supreme Court of Kenya
21 April 2023
4,477 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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You cannot appeal to Kenya's Supreme Court unless you were a party in the lower courts.

What this practically means

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The Supreme Court dismissed an appeal by the Law Society of Kenya because it was not a party in the original case. The court ruled that only people or groups who were directly involved in the High Court and Court of Appeal cases can appeal to the Supreme Court. Even if you have a legal mandate to uphold the Constitution, you cannot jump into a case at the final appeal stage. You must first participate in the lower courts.

Executive summary

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This judgment addresses two preliminary issues: whether the Supreme Court has jurisdiction to hear the appeal, and whether the appellant, the Law Society of Kenya (LSK), has locus standi. The LSK appealed the Court of Appeal's decision which had allowed the Communications Authority of Kenya to continue developing a Device Management System (DMS) subject to public participation. The LSK was not a party in the High Court or Court of Appeal proceedings. The 1st respondent raised a preliminary objection, arguing the appellant had wrongfully invoked the court's jurisdiction under Article 163(4)(a) of the Constitution and lacked locus standi. The Supreme Court upheld the preliminary objection. It held that the definition of 'a person' in Rule 36 of the Supreme Court Rules, read with Article 163, only extends to a party who is aggrieved by a decision of the Court of Appeal and does not open the door for a passer-by or a party who did not litigate the issues before the superior courts. The court further held that the LSK, despite its statutory mandate under the Law Society of Kenya Act, was not a proper party in this appeal as it had no direct and substantive interest in the matter as litigated in the lower courts. The court distinguished the appellant's reliance on Articles 22 and 258 of the Constitution, noting these provisions provide a pathway to the High Court, not the Supreme Court. Consequently, the court lacked jurisdiction, and both the appeal and the cross-appeal were dismissed with costs to the 1st respondent.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to hear and determine this appeal
  2. 2.Whether the appellant is a proper party before this court and has locus standi in this appeal

Key legal issues

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01

Does the Supreme Court have jurisdiction under Article 163(4)(a) to hear an appeal filed by a party who was not a party in the proceedings before the High Court or Court of Appeal?

Holding

No. The phrase 'a person' in Rule 36 of the Supreme Court Rules, read with Article 163, only extends to a party aggrieved by a decision of the Court of Appeal. It does not extend to a 'passer-by' or a new party who did not litigate the issues before the superior courts.

Reasoning

The court examined its constitutional jurisdiction under Article 163(3) and (4). It held that the appellate jurisdiction is to hear appeals from the Court of Appeal, and 'a person' who can appeal is a party against whom a decision was issued. The appellant, the Law Society of Kenya, was not a party before the High Court or the Court of Appeal and had not litigated those issues. While recognising the appellant's statutory mandate under the Law Society of Kenya Act, the court found that this did not confer standing to appeal at the Supreme Court. The court distinguished the appellant's reliance on Articles 22 and 258, noting these provisions provide a pathway to the High Court, not an automatic right to appeal to the Supreme Court.

02

Does the Law Society of Kenya have locus standi to appeal a Court of Appeal judgment to the Supreme Court when it was not a party in the lower courts?

Holding

No. The Law Society of Kenya is not a 'proper party' before the Supreme Court in this appeal. Its statutory mandate does not give it an automatic right to appeal as a non-party to the original suit.

Reasoning

The court applied the test for a proper party established in Kingori v Chege & 3 others, requiring a 'designed subsisting direct and substantive interest' in the litigation. The court found the appellant lacked this. While the appellant invoked its statutory obligation under section 4 of the Law Society of Kenya Act to uphold the Constitution, the court held this was insufficient to make it a proper party in a specific appeal where it was not involved in the lower courts. The appellant could not be heard to challenge findings of fact or law that it had not previously participated in.

Legal principles established

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  • Only a party who was aggrieved by a Court of Appeal decision can appeal to the Supreme Court under Article 163(4)(a).
  • A 'passer-by' or new party who did not litigate in lower courts cannot appeal to the Supreme Court, even in public interest matters.
  • Articles 22 and 258 of the Constitution allow rights claims, but only in the High Court, not as a direct appeal to the Supreme Court.
  • To be a 'proper party' before the Supreme Court, you must have a direct, subsisting, and substantive interest in the litigation.
  • A statutory mandate to uphold the Constitution does not automatically give you standing to appeal a case you were not part of.
  • The Supreme Court's appellate jurisdiction is limited to hearing appeals from parties in the original suit.

Court orders

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  1. 1.The appeal is hereby dismissed for want of the locus of the appellant
  2. 2.The cross appeal is also hereby dismissed
  3. 3.The appellant shall bear the costs of this appeal

The bench

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

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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An order setting aside the Court of Appeal decision and reinstating the High Court judgments

The court lacked jurisdiction as the appellant was not a proper party

A declaration that the 1st respondent's decision to procure and install the DMS is unconstitutional

The court lacked jurisdiction as the appellant was not a proper party

The cross appeal by the 3rd respondent

The court lacked jurisdiction over the main appeal, so the cross appeal fell away

Costs

The appellant shall bear the costs of this appeal

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.

the definition of 'a person' seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court.
p. 10 Locus standi and definition of 'person' under Supreme Court Rules
while article 22 of the Constitution provides a pathway for parties to contest the denial, violation or infringement of a right or fundamental freedoms, the proper avenue is at the High Court which grants that court jurisdiction to determine questions of denial, violation or infringement of a right or fundamental freedom.
p. 11 Proper forum for enforcement of fundamental rights

Key timeline

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Before 2023
Communications Authority of Kenya began developing a Device Management System (DMS).
2023
The High Court and Court of Appeal ruled on the DMS case, but the Law Society of Kenya was not a party.
2024-07-26
The Supreme Court dismissed the Law Society of Kenya's appeal for lack of locus standi.

Practical implications

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For lawyers

Locus standi for Supreme Court appeals

When advising clients on Supreme Court appeals, confirm they were a party in the High Court and Court of Appeal. Even if your client has a public interest mandate, they cannot appeal a case they did not litigate. If they want to challenge a decision, they must first seek to be joined in the lower courts or file a fresh constitutional petition at the High Court under Articles 22 or 258.

For businesses

Challenge regulations early in litigation

If your business is affected by a regulatory decision like the Device Management System, you must join the case at the High Court or Court of Appeal. You cannot wait until the Supreme Court to raise objections. Monitor cases filed by others and apply to be an interested party early. Otherwise, you lose the right to appeal the final decision, even if it harms your operations.

For individuals

Join cases early to preserve appeal rights

If you care about a public issue like privacy or fair administrative action, you must join the case at the High Court. You cannot rely on an organization like the Law Society of Kenya to appeal for you if they were not part of the original case. To protect your right to appeal to the Supreme Court, you need to be a named party from the start.

Frequently asked questions

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Can the Law Society of Kenya appeal any case to the Supreme Court in Kenya?+

No. The Supreme Court ruled that the Law Society of Kenya can only appeal cases it was a party to in the High Court and Court of Appeal. Its statutory mandate to uphold the Constitution does not give it an automatic right to appeal cases it did not participate in.

What does locus standi mean for Supreme Court appeals in Kenya?+

Locus standi means you must have a direct and substantive interest in the case. For Supreme Court appeals under Article 163(4)(a), you must have been a party in the lower courts. A 'passer-by' or someone who was not involved cannot appeal, even if the case involves public interest.

How can I challenge a Court of Appeal decision in Kenya if I was not a party?+

You cannot appeal directly to the Supreme Court. Instead, you can file a fresh constitutional petition at the High Court under Articles 22 or 258 of the Constitution. Alternatively, you can apply to be joined as an interested party in the ongoing case at the lower court level.

What is the Device Management System case in Kenya about?+

The case involves the Communications Authority of Kenya developing a Device Management System (DMS). The Court of Appeal allowed it to proceed subject to public participation. The Law Society of Kenya tried to appeal this decision to the Supreme Court but was dismissed because it was not a party in the original case.

Later judgments citing this (6)

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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 Communications Authority of Kenya & 10 others", Case Analysis (2023). Petition 8 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/27/eng@2023-04-21

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