Muriithi & 32 others v Law Society of Kenya & another
The bottom line
#Supreme Court can correct grave injustice even without a pending appeal.
What this practically means
#The Supreme Court of Kenya ruled that while it usually cannot review interim orders from the Court of Appeal, it can step in when those orders violate the Constitution. In this case, the Court of Appeal had ordered people to pay money that was still being disputed in the High Court. The Supreme Court said this effectively decided the case before trial, which is unfair. It set aside that order and sent the case back to the High Court for a proper hearing.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this Court has jurisdiction
- 2.whether the Appellate Court’s Order was in violation of the Constitutional rights of the applicants
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to determine matters arising from an application under Rule 5(2)(b) of the Court of Appeal Rules.
The Supreme Court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5(2)(b) where there is neither an appeal nor an intended appeal pending before the Supreme Court. However, the Court retains residual jurisdiction to correct a palpable injustice occasioned by a contravention of the Constitution.
The Court held that Rule 5(2)(b) applications are interlocutory and preserve the substratum of an appeal; the Court of Appeal exercises original and discretionary jurisdiction. The Supreme Court's appellate jurisdiction under Article 163(4)(a) is triggered only after the Court of Appeal has substantively determined the appeal. However, where the Court of Appeal's order contravenes the Constitution and causes grave injustice, the Supreme Court has inherent jurisdiction to intervene to correct that injustice, not on the merits of the Rule 5(2)(b) application but to uphold constitutional integrity.
Whether the Court of Appeal's order under Rule 5(2)(b) violated the applicants' constitutional rights.
Yes, the Court of Appeal's order requiring the applicants to deposit monies that were the subject of the High Court petition had the effect of predetermining the substantive cause and violated the applicants' right to a fair hearing under Article 50(1) of the Constitution.
The High Court had not yet determined whether the sums were due. The Court of Appeal's order effectively required the applicants to pay the contested sums, thereby disposing of the substratum of the High Court petition before a hearing on the merits. This pre-emptive effect denied the applicants a fair hearing, contravening Article 50(1). The Supreme Court found this to be a palpable injustice warranting its intervention.
Whether the Supreme Court should depart from its decision in Teachers Service Commission v. Kenya National Union of Teachers & 3 Others.
The Supreme Court declined to depart from its decision in Teachers Service Commission, affirming the principle that it lacks jurisdiction to interfere with the Court of Appeal's discretion under Rule 5(2)(b) in the absence of a pending appeal.
The Court held that the principle in Teachers Service Commission was sound and should be sustained in the interests of certainty and predictability in the judicial process. The Court distinguished the present case on the basis that it was intervening not to review the exercise of discretion but to correct a palpable injustice and constitutional violation caused by the Court of Appeal's order.
Legal principles established
#- The Court of Appeal cannot use interim orders to decide the main case before trial.
- The Supreme Court generally cannot review interim orders unless an appeal is pending.
- The Supreme Court has power to correct a clear constitutional violation causing injustice.
- An order that forces payment of disputed money before trial violates the right to a fair hearing.
- The Supreme Court will not overturn its own settled rules just for convenience.
- Costs in such cases follow the outcome of the main case, not the interim application.
Court orders
#- 1.Application No. 12 of 2015 (dated July 3, 2015) is allowed
- 2.the Conservatory Orders issued by this Court on July 15, 2015 are hereby vacated
- 3.the Ruling and Order of the Court of Appeal, delivered on May 29, 2015 is hereby set aside
- 4.the substantive cause before the trial Court shall be disposed of appropriately on the basis of the directions of that Court
- 5.the costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Application to strike out the Notice of Motion for want of jurisdiction
The Court found it had jurisdiction to correct the injustice occasioned by the Court of Appeal's order, though not on the merits of the Rule 5(2)(b) application.
Costs
the costs shall be in the cause
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.
As the Court of Appeal exercises its discretion under Rule 5(2)(b) of the Court of Appeal Rules, 2010 it needs to be mindful of the parameters set by Article 164(3) of the Constitution, and to ensure that the Orders it grants do not have the effect of predetermining the substantive cause pending before the Court below it.
It is regrettable that the Order of the Appellate Court had the effect of predetermining the two petitions at the High Court, without the applicants having been heard on the merits, contrary to the terms of Article 50 of the Constitution.
where there is such a palpable injustice as in the instant case, this Court has jurisdiction, not as to the merits, but for the purpose of correcting the injustice occasioned by a contravention of the Constitution.
the Ruling and Order of the Court of Appeal, delivered on May 29, 2015 is hereby set aside; the substantive cause before the trial Court shall be disposed of appropriately on the basis of the directions of that Court; the costs shall be in the cause.
Key timeline
#Practical implications
#Limit Court of Appeal interim orders
When drafting Rule 5(2)(b) applications, ensure the order sought does not effectively resolve the main dispute. If it forces payment or performance of the contested obligation, the Supreme Court may set it aside as a constitutional violation. Frame relief to preserve the status quo without predetermining the case.
Disputed payments cannot be forced early
If you are ordered to pay money that is still being challenged in court, you can argue that the order violates your right to a fair hearing. The Supreme Court will intervene if the order effectively decides the case before trial. This protects you from being forced to pay before your side is heard.
Fair hearing protects you from pre-judgment
You cannot be forced to pay disputed money just because an appeal court issues a stay. If an interim order effectively decides the main issue against you, you can challenge it as unconstitutional. The Supreme Court has the power to correct such injustice, even if no appeal is pending.
Frequently asked questions
#Can the Supreme Court of Kenya review a Court of Appeal interim order?+
Generally no, unless there is an appeal pending. But if the interim order violates the Constitution, the Supreme Court can step in to correct the injustice, even without an appeal.
What is Rule 5(2)(b) of the Court of Appeal Rules in Kenya?+
It allows the Court of Appeal to grant interim orders, like a stay, to preserve the subject of an appeal. But the order must not decide the main case before the trial court hears it.
Does the Supreme Court in Kenya have jurisdiction over interlocutory appeals?+
No, the Supreme Court only hears final appeals from the Court of Appeal. However, it has residual power to correct constitutional violations that cause grave injustice, even in interim matters.
What happens if a court order forces me to pay money that is still disputed in Kenya?+
You can challenge it as a violation of your right to a fair hearing. The Supreme Court may set aside the order if it effectively decides the case before trial, as happened in this judgment.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Muriithi & 32 others v Law Society of Kenya & another", Case Analysis (2016). Civil Application 12 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2016/13/eng@2016-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.