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Supreme CourtDismissedApplication E029 of 2023

Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others

Supreme Court of Kenya
8 September 2023
Martha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
5,242 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from interim Court of Appeal orders.

What this practically means

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The Supreme Court dismissed Okiya Omtatah's bid to stop the Finance Act 2023. The Court ruled it has no power to hear appeals from temporary Court of Appeal orders, like the one lifting a freeze on the Act. Those orders don't decide the main case, so they can't be appealed to the Supreme Court. The Court also struck out late filings from both sides, stressing strict compliance with deadlines.

Executive summary

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This was an application by Okiya Omtatah Okoiti and others seeking to suspend or stay a ruling of the Court of Appeal that had lifted conservatory orders suspending the Finance Act, 2023. The High Court had initially issued conservatory orders suspending the Act pending the hearing of a petition challenging its constitutionality. The 1st, 2nd, 3rd, and 4th respondents appealed to the Court of Appeal, which under rule 5(2)(b) of the Court of Appeal Rules stayed the High Court's conservatory orders, allowing the Act to take effect. The applicants then moved to the Supreme Court, arguing that the Court of Appeal had acted without jurisdiction and that the matter fell within exceptional circumstances warranting the Supreme Court's intervention. The Supreme Court dismissed the application. It held that it lacked jurisdiction under Article 163(4)(a) of the Constitution to entertain applications challenging the Court of Appeal's exercise of discretion under rule 5(2)(b), as such orders do not constitute a substantive determination of a constitutional question or matter of general public importance. The court distinguished its earlier decision in Bia Tosha 2020, clarifying that it did not create an exception for rule 5(2)(b) applications. The court also struck out the applicants' and respondents' filings that were made out of time without leave, emphasizing the importance of compliance with court orders and practice directions. No order as to costs was made, given the public interest nature of the matter.

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 entertain an application challenging the exercise of the Court of Appeal's discretion under rule 5(2)(b) of the Court of Appeal Rules.
  2. 2.Whether the applicants' appeal falls within the exceptional circumstances that would warrant this court to entertain such an application.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to entertain an application challenging the Court of Appeal's exercise of discretion under rule 5(2)(b) of the Court of Appeal Rules.

Holding

The Supreme Court lacks jurisdiction to entertain such applications because the Court of Appeal, in exercising its discretion under rule 5(2)(b), does not make a substantive determination of a constitutional question or a matter of general public importance, which is a prerequisite for an appeal under Article 163(4) of the Constitution.

Reasoning

The court relied on its settled jurisprudence, including the Teachers Service Commission case, which held that an order under rule 5(2)(b) is interlocutory and does not dispose of the appeal. Therefore, there is no decision from the Court of Appeal that meets the constitutional threshold for an appeal to the Supreme Court. The court distinguished the Bia Tosha 2020 case, noting that in that case the appeal arose from a substantive determination of the issues by both the High Court and the Court of Appeal, unlike the present motion which challenged an interlocutory ruling.

p. 12
02

Whether the applicants' case fell within the exceptional circumstances that would warrant the Supreme Court to entertain an application arising from a rule 5(2)(b) order.

Holding

The applicants' case did not fall within any exceptional circumstances. The court clarified that its decision in Bia Tosha 2020 did not create an exception for rule 5(2)(b) applications, and the circumstances in that case were distinguishable.

Reasoning

The court found that the applicants misapprehended the Bia Tosha 2020 decision. In that case, the appeal arose from an interlocutory ruling of the High Court granting conservatory orders, but the issue had been considered and determined on merit by both the High Court and the Court of Appeal. In the present case, the intended appeals before the Court of Appeal had been filed and were to be disposed within 60 days, and the hearing of the amended petition before the High Court was scheduled to commence. Therefore, the issues could be properly ventilated in those forums, and no grave injustice had been occasioned to warrant invocation of the court's inherent jurisdiction.

p. 12
03

Whether the applicants' and respondents' filings that were made out of time without leave of the court should be struck out.

Holding

The applicants' four sets of written submissions filed out of time were struck out, and the respondents' responses and submissions filed out of time without leave were also struck out, except for the 3rd and 4th respondents' submissions which were filed on time.

Reasoning

The court found that neither the Supreme Court Act, the Supreme Court Rules, nor the Practice Directions permit parties to file joint submissions and separate submissions simultaneously. The applicants' initial joint submissions were 48 pages long, contrary to Practice Direction No 17(a)(i) which limits submissions to 15 pages. The respondents failed to seek leave before filing their responses out of time, and their explanations for the delay were not convincing. The court emphasized that compliance with court orders goes to the root of the rule of law and the dignity of the court.

p. 9

Legal principles established

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  • Supreme Court lacks jurisdiction to hear appeals from Court of Appeal interim orders under rule 5(2)(b).
  • An interim order is not a final decision on a constitutional question or matter of general public importance.
  • Parties must follow Supreme Court filing deadlines; late filings without permission will be struck out.
  • The Bia Tosha 2020 case does not create an exception for appeals from interim orders.
  • Court orders and rules must be obeyed to uphold the rule of law and court dignity.

Court orders

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  1. 1.The four sets of written submissions filed out of time by the applicants on August 15, 2023 on the court's online platform be and are hereby struck out.
  2. 2.The responses and/or submissions filed out of time by the 1st, 2nd, 3rd, 4th, 5th, 8th and 9th respondents be and are hereby struck out.
  3. 3.The applicants' notice of motion dated August 5, 2023 be and is hereby dismissed.
  4. 4.There shall be no orders as to costs.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
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
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Application Nos E304 & E310 of 2023
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Suspension or stay of the ruling delivered on July 28, 2023 and the orders granted by the Court of Appeal in Civil Application Nos E304 & E310 of 2023.

The court lacked jurisdiction to entertain the motion as it arose from the Court of Appeal's exercise of discretion under rule 5(2)(b), and no exceptional circumstances were established.

p. 12

Suspension or stay of the intended proceedings in the Court of Appeal as ordered by the Court of Appeal.

The court lacked jurisdiction and the intended appeals before the Court of Appeal had since been filed and were to be disposed within 60 days.

p. 12

Costs

There shall be no orders as to costs.

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.

this court has time and time again pronounced itself on its jurisdiction to entertain applications challenging the exercise of the Court of Appeal discretion under rule 5(2)(b). Some of those decisions have been cited by the parties herein. In the Teachers Service Commission case this court held that it lacked jurisdiction to determine such applications.
p. 12 Jurisdiction of the Supreme Court over rule 5(2)(b) orders
in exercising its discretion under rule 5(2)(b), the Court of Appeal does not determine the appeal before it. Therefore, there is no substantive determination of either a constitutional question or matter of general public importance by the Court of Appeal
p. 12 Nature of rule 5(2)(b) orders
Flowing from the foregoing, we find that the motion does not fall within the court's appellate jurisdiction under article 163(4)(a) as invoked by the applicants.
p. 12 Lack of jurisdiction
to accede to the respondents' prayer to deem the responses and/or submissions filed out of time as properly before the court is tantamount to sanctioning an illegality.
p. 10 Compliance with court timelines
The applicants' notice of motion dated August 5, 2023 be and is hereby dismissed.
p. 13 Final orders
There shall be no orders as to costs.
p. 13 Costs order

Key timeline

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2023-06-30
High Court issues conservatory orders suspending Finance Act 2023.
2023-07
Court of Appeal lifts High Court orders under rule 5(2)(b), allowing Finance Act to take effect.
2023-08-05
Okiya Omtatah and others file application at Supreme Court to challenge Court of Appeal ruling.
2023-08-15
Applicants and some respondents file submissions out of time without court permission.
2023-09-22
Supreme Court strikes out late filings and dismisses application for lack of jurisdiction.

Practical implications

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For lawyers

No appeals from interim orders

Lawyers cannot appeal Court of Appeal interim orders under rule 5(2)(b) to the Supreme Court. Focus on substantive appeals after final judgment. Also, strictly comply with Supreme Court filing timelines; late submissions will be struck out without leave. Use this case to advise clients on realistic appeal strategies.

For businesses

Finance Act challenges limited

Businesses relying on court orders to delay tax laws like the Finance Act 2023 face hurdles. The Supreme Court won't hear appeals from interim orders lifting such freezes. Plan for tax compliance even during legal challenges, as interim wins can be quickly reversed and not appealed further.

For individuals

Court deadlines are strict

Individuals filing cases in Kenya's Supreme Court must meet all deadlines. Filing documents late without prior court permission will get them thrown out, as happened here. Always check court rules and practice directions, and seek legal advice on timelines to avoid losing your case on technical grounds.

Frequently asked questions

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Can I appeal a Court of Appeal interim order to the Supreme Court in Kenya?+

No, the Supreme Court has ruled it lacks jurisdiction to hear appeals from interim orders under rule 5(2)(b) of the Court of Appeal Rules. Such orders are not final decisions on constitutional questions or matters of general public importance.

What happened in Okiya Omtatah v National Assembly case in Kenya?+

The Supreme Court dismissed Omtatah's application to challenge a Court of Appeal order that lifted a freeze on the Finance Act 2023. The Court said it cannot hear appeals from temporary orders, and also struck out late filings from both sides.

What are the filing deadlines in Kenya's Supreme Court?+

The Supreme Court has strict timelines under its rules and practice directions. For example, written submissions are limited to 15 pages. Filing documents late without prior leave of the court will result in them being struck out, as seen in this case.

Does the Bia Tosha 2020 case allow appeals from interim orders in Kenya?+

No, the Supreme Court clarified that Bia Tosha 2020 does not create an exception for appeals from interim orders. That case involved a substantive determination of issues by both lower courts, unlike the current case which only challenged an interim ruling.

Later judgments citing this (16)

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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, "Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others", Case Analysis (2023). Application E029 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/69/eng@2023-09-08

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