Macharia & another v Director of Public Prosecutions & 11 others
The bottom line
#Supreme Court strikes out appeal by interested parties who tried to become main parties.
What this practically means
#The Supreme Court ruled that someone who was only an interested party in a lower court cannot later become a main party on appeal. The petitioners were not directly involved in the original case and tried to raise new constitutional issues that were not decided by the lower courts. Since the main parties did not appeal, the interested parties had no right to bring this appeal. Their petition was struck out.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal raises issues of constitutional interpretation or application under Article 163(4)(a) of the Constitution.
- 2.Whether the petitioners have locus standi to institute the appeal before the Supreme Court.
Key legal issues
#Whether the appeal raises issues of constitutional interpretation or application under Article 163(4)(a) of the Constitution.
The appeal does raise constitutional questions because both the High Court and Court of Appeal dealt with the interpretation and application of Article 157 of the Constitution on the DPP's prosecutorial mandate.
The court acknowledged that the core issue before the lower courts was whether the DPP legitimately exercised his power in reviewing the decision not to investigate SCB, which revolved around Article 157. Therefore, the petitioners demonstrated that the appeal involves constitutional questions that were litigated below, satisfying the threshold under Article 163(4)(a).
Whether the petitioners have locus standi to institute the appeal before the Supreme Court.
The petitioners lack locus standi because they were interested parties with a peripheral stake in the proceedings below and cannot now assume the role of primary parties or advance new constitutional grounds not determined by the lower courts.
The court applied the principle from Francis Karioki Muruatetu that the overriding interest in any matter is that of the primary parties. The petitioners' stake remained peripheral throughout, and they sought to advance their own rights which had never been the subject of judicial determination. The primary parties (DPP and the 3rd to 11th respondents) were not aggrieved. The court also cited Mumo Matemu for the proposition that an interested party cannot seek to strike out the suit or mutate into a central party.
Legal principles established
#- An interested party cannot assume overriding interests beyond the primary parties.
- An interested party cannot mutate from a peripheral stake into a central core party.
- An interested party cannot advance freshly formulated constitutional grounds not determined by the lower courts.
- For an appeal under Article 163(4)(a), the petitioner must show constitutional issues were canvassed in both High Court and Court of Appeal.
- Primary parties' lack of grievance means interested parties cannot appeal on their behalf.
Court orders
#- 1.The Notice of Motion application dated 6th May, 2022 is hereby allowed.
- 2.The Petition of Appeal dated 14th April, 2022 is hereby struck out.
- 3.The Petitioners shall bear costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#The petitioners' appeal against the Court of Appeal judgment
The petitioners lacked locus standi to institute the appeal; their stake was peripheral and they sought to advance new constitutional grounds not determined below.
Costs
The Petitioners shall bear costs of this application.
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 petitioners, though interested parties before the superior courts below, cannot, at this juncture, have overriding interests above and beyond the primary parties or mutate from having a peripheral stake into central core parties complete with freshly and new formulated constitutional grounds that were not the issues determined by the court appealed from.
the petitioner has to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal and demonstrate that the superior courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
Key timeline
#Practical implications
#Locus standi of interested parties on appeal
Lawyers must ensure that if they represent an interested party, they cannot become a primary appellant unless the primary parties also appeal. The court will strike out appeals where interested parties try to raise new issues not litigated below. Advise clients that their role is limited to the lower court's scope.
Strategic litigation by interested parties limited
Businesses that are interested parties in a case (e.g., as observers or amici) cannot use the appeal process to advance their own agenda. They must remain peripheral and cannot override the main parties' decisions. If the primary parties do not appeal, the business has no standing to do so.
Cannot appeal a case you were not directly involved in
If you join a case as an interested party, you cannot later appeal the decision on your own if the main parties do not appeal. You must show you were a primary party with a direct stake. Otherwise, your appeal will be struck out by the Supreme Court.
Frequently asked questions
#Can an interested party in a Kenyan court case appeal the decision?+
No, unless the primary parties also appeal. The Supreme Court ruled that an interested party has a peripheral stake and cannot become a central party on appeal. They must remain within the scope of the original case.
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court on matters of constitutional interpretation or application. The appeal must show that the constitutional issue was raised in both the High Court and Court of Appeal.
What does locus standi mean in Kenyan law?+
It means the legal right to bring a case. In this case, the interested parties lacked locus standi because they were not the primary parties and the main parties were not aggrieved.
Can you raise new constitutional arguments in the Supreme Court of Kenya?+
No, not if you were an interested party in the lower courts. The Supreme Court said you cannot mutate into a central party with freshly formulated grounds not determined below. You must stick to issues already litigated.
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.
- Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others[2026] KESC 30 (KLR)31 Mar 2026followed
- Kingena Farmers Co-operative Society Limited v Attorney General & 8 others; Commission on Administrative Justice & another (Interested Parties) (Environment and Land Constitutional Petition E006 of 2025) [2025] KEELC 7210 (KLR)[2025] KEELC 7210 (KLR)15 Oct 2025
- Muthamia v State Law Office & another; Kangai & 5 others (Interested Parties) (Environment & Land Case E005 of 2023) [2025] KEELC 4716 (KLR)[2025] KEELC 4716 (KLR)23 Jun 2025applied
- Senate & 3 others v Speaker of the National Assembly & 10 others[2025] KESC 11 (KLR)21 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Macharia & another v Director of Public Prosecutions & 11 others", Case Analysis (2022). Petition 9 (E011) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/61/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.