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Supreme CourtPartially AllowedPetition 40 of 2019

Peter Ayodo Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others

Supreme Court of Kenya
30 April 2020
1,785 words in judgment
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The bottom line

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Supreme Court can hear appeals on constitutional issues first raised in lower courts.

What this practically means

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The Supreme Court of Kenya ruled that it has the power to hear an appeal directly if the case involves constitutional questions that were already argued in the High Court and Court of Appeal. In this case, the petitioners had raised several constitutional rights in their judicial review case, so the appeal could proceed without needing special permission. The Court rejected an objection that tried to block the appeal.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala, and Lenaola SCJJ) determined a preliminary objection by the 1st respondent challenging the Court's jurisdiction to hear an appeal as of right under Article 163(4)(a) of the Constitution. The appeal arose from judicial review proceedings in the High Court, where the petitioners had obtained an order prohibiting the respondents from prosecuting an anti-corruption case. The Court of Appeal set aside that order, prompting the petitioners to appeal to the Supreme Court. The 1st respondent argued that the appeal did not involve constitutional interpretation or application and that no leave was obtained. The Supreme Court rejected the objection, holding that the appeal raised constitutional issues that originated from the High Court, as the petitioners had invoked numerous constitutional provisions (including Articles 10, 22, 23, 27, 28, 29, 50, 157, and 165) in their pleadings. The Court emphasized that for an appeal to be as of right, the constitutional questions must have transcended from the courts below and not be raised for the first time before the Supreme Court. It distinguished purely civil cases from criminal or mixed cases, noting that the latter require a more careful approach. The Court found that the High Court had addressed constitutional issues, including Article 157(10) on the DPP's powers, and the Court of Appeal had considered Article 227 on public procurement. Consequently, the preliminary objection was disallowed, and costs were ordered to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the Supreme Court has jurisdiction to hear and determine this appeal as of right under Article 163(4)(a) of the Constitution.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal as of right under Article 163(4)(a) where constitutional provisions were invoked in the High Court judicial review proceedings.

Holding

The Supreme Court has jurisdiction because the appeal raises constitutional issues that originated from the High Court at the first instance, as the petitioners invoked several constitutional provisions in their pleadings.

Reasoning

The Court examined the Statutory Statement and Notice of Motion, which cited Articles 10, 22, 23, 27, 28, 29, 41, 47, 50, 157, 159(9)(2)(a) & (b), 165, and 259 of the Constitution. The grounds included allegations of violation of constitutional rights such as abuse of criminal law and trial process. The High Court judgment addressed Article 157(10) on the DPP's office, and the Court of Appeal grounds included Article 227. The Court distinguished purely civil cases where constitutional invocation may not suffice, noting that criminal or mixed cases require a more careful approach. It concluded that the constitutional questions were not raised for the first time before the Supreme Court but had transcended from the lower courts.

Legal principles established

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  • For an appeal as of right under Article 163(4)(a), constitutional questions must have been raised in the courts below, not for the first time at the Supreme Court.
  • A litigant can invoke the Constitution in any proceedings, including judicial review, and the High Court can address those constitutional issues.
  • Criminal or mixed cases require a more careful approach than purely civil cases when determining if constitutional questions were properly raised.
  • The Supreme Court will examine the pleadings from lower courts to see if constitutional provisions were cited and argued.
  • Costs of a preliminary objection on jurisdiction will be decided based on the final outcome of the appeal.

Court orders

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  1. 1.The preliminary objection dated 3rd December 2019 is disallowed.
  2. 2.The costs of the objection will abide the outcome of the appeal.

The bench

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
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

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 summation of the above position is that we are persuaded, without going to the merits of the case, that the appeal raises constitutional issues that were originated from the High Court at the first instance.
p. 4 Jurisdiction of the Supreme Court
In our view, nothing precludes a litigant from invoking the Constitution in whatever proceedings pending before the High Court.
p. 3 Constitutional invocation in judicial review
The preliminary objection dated 3rd December 2019 lacks merit and is disallowed. The costs of the objection will abide the outcome of the appeal.
p. 4 Final orders on preliminary objection

Key timeline

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2019-12-03
1st respondent filed a preliminary objection challenging the Supreme Court's jurisdiction.
2020
Supreme Court delivered its ruling, disallowing the preliminary objection.

Practical implications

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For lawyers

Jurisdiction for constitutional appeals clarified

When preparing an appeal to the Supreme Court under Article 163(4)(a), ensure that constitutional issues were explicitly pleaded and argued in the High Court and Court of Appeal. Simply mentioning constitutional articles in the notice of appeal may not suffice; the lower court record must show that those issues were actually addressed. This ruling reinforces the need to build a clear constitutional trail from the start.

For businesses

Impact on judicial review of prosecutions

If your business faces a criminal prosecution you believe is unconstitutional, you can challenge it through judicial review in the High Court and raise constitutional rights there. This ruling confirms that such a challenge can eventually reach the Supreme Court as of right, without needing leave. However, you must ensure the constitutional arguments are fully developed in the lower courts from the outset.

For individuals

Your rights in criminal proceedings

If you believe your constitutional rights are being violated in a criminal case, you can raise those rights in any court, including during judicial review proceedings. The Supreme Court has now confirmed that it can hear your appeal directly if those constitutional issues were properly raised in the lower courts. This gives you a clearer path to protect your rights all the way to the highest court.

Frequently asked questions

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What is Article 163(4)(a) of the Kenyan Constitution?+

Article 163(4)(a) allows a party to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. This means you do not need to ask for permission to appeal if your case raises a genuine constitutional question that was argued in the lower courts.

Can I appeal directly to the Supreme Court in Kenya without leave?+

Yes, but only if your case involves the interpretation or application of the Constitution under Article 163(4)(a). The constitutional question must have been raised and argued in the High Court and Court of Appeal. If it is raised for the first time at the Supreme Court, you will need to seek leave to appeal.

What is a preliminary objection in Kenyan law?+

A preliminary objection is a legal argument that a case should not proceed because of a fundamental issue, such as lack of jurisdiction. It is raised at the start of a hearing and, if successful, can end the case without going into the merits. In this ruling, the Supreme Court rejected a preliminary objection challenging its jurisdiction.

How does judicial review work in Kenya?+

Judicial review is a court process where a judge reviews the legality of a decision made by a public body, such as a prosecution. In Kenya, you can combine judicial review with constitutional claims. This ruling confirms that if you raise constitutional issues in a judicial review case, you can appeal to the Supreme Court as of right.

Later judgments citing this (4)

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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, "Peter Ayodo Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others", Case Analysis (2020). Petition 40 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/70/eng@2020-04-30

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