Saisi v Director of Public Prosecutions & 2 others
The bottom line
#Supreme Court can hear appeals on constitutional issues even if they started as judicial review cases.
What this practically means
#The Supreme Court ruled that it has the power to hear an appeal from a judicial review case if the appeal raises genuine constitutional questions. The case involved a person challenging the DPP's decision to prosecute her. The Court said simply claiming a constitutional issue is not enough; the party must show that the constitutional question was properly raised in both the High Court and Court of Appeal. Since a similar case had already been accepted, this appeal could proceed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appeal raises any issue involving the interpretation or application of the Constitution, as contemplated under Article 163(4)(a) of the Constitution
Key legal issues
#Whether the appeal raises any issue involving the interpretation or application of the Constitution under Article 163(4)(a).
The Supreme Court held that it has jurisdiction to entertain the appeal because it raises constitutional issues that were originated from the High Court at the first instance, noting that a prior ruling in a related petition (Petition No. 40 of 2019) had already determined that similar issues fell within the Court's jurisdiction.
The Court reviewed the guiding principles from Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others and Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd. & Another, which require that an appeal under Article 163(4)(a) must involve cogent constitutional controversy. The Court also applied the principles from Peninah Nadako Kiliswa v. IEBC & 2 others, which set out specific requirements for judicial review matters to be appealable under Article 163(4)(a). The Court noted that a prior Ruling in Dr. Peter Odoyo Omenda & 6 Others v. Ethics & Anti-Corruption Commission & 2 Others (Petition No. 40 of 2019) had already determined that similar issues raised constitutional questions, and the Court saw no reason to depart from that finding.
Legal principles established
#- An appeal to the Supreme Court under Article 163(4)(a) must involve a real constitutional controversy, not just a claim.
- The party appealing must show the constitutional issue was raised and argued in both the High Court and Court of Appeal.
- A prior Supreme Court ruling on similar issues can establish jurisdiction for a later, related appeal.
- Judicial review cases can be appealed to the Supreme Court if they involve constitutional interpretation or application.
- Each party bears its own costs when a preliminary objection is overruled, unless special circumstances exist.
Court orders
#- 1.The Preliminary Objection filed on 29th October 2019 is hereby overruled.
- 2.Each Party shall bear its costs of the Objection.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 2 of 2017 consolidated with Civil Appeal No. 184 of 2016
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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 Preliminary Objection filed on 29th October 2019 is hereby overruled.
Each Party shall bear its costs of the Objection.
Having considered the present Application and the objection to our jurisdiction, and noting the issues canvassed in Petition No.40 of 2019 leading to the Ruling aforesaid, we see no reason to depart from our findings and would therefore agree that we have the jurisdiction to determine the present Appeal in its unique circumstances.
mere allegation that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Frame constitutional issues from the start
When filing a judicial review case that may reach the Supreme Court, ensure constitutional provisions are explicitly pleaded and argued at both the High Court and Court of Appeal. A mere allegation of a constitutional question is insufficient; you must demonstrate a genuine constitutional controversy. Reference prior Supreme Court rulings on similar issues to strengthen jurisdiction arguments.
DPP decisions can be challenged on constitutional grounds
If your business faces prosecution by the DPP, you may challenge the decision through judicial review if it violates constitutional rights like fair trial or equality. This ruling confirms that such challenges can ultimately be appealed to the Supreme Court, provided the constitutional issues are properly raised from the outset. Ensure your legal team documents all constitutional arguments early.
Your constitutional rights can be defended up to Supreme Court
If you believe the DPP's decision to prosecute you violates your constitutional rights, you can seek judicial review. This case shows that even if you lose at the Court of Appeal, you may still appeal to the Supreme Court if your case raises genuine constitutional questions. However, you must clearly raise those constitutional issues in your initial court filings.
Frequently asked questions
#Can I appeal a judicial review case to the Supreme Court in Kenya?+
Yes, but only if the case involves a genuine constitutional interpretation or application issue. You must have raised the constitutional question in both the High Court and Court of Appeal. Simply claiming a constitutional issue is not enough.
What is a preliminary objection in Kenyan courts?+
A preliminary objection is a legal argument that a case should be dismissed without a full hearing, usually because the court lacks jurisdiction or the case is legally flawed. In this case, the DPP argued the Supreme Court had no jurisdiction, but the Court disagreed.
Does the Supreme Court automatically hear all appeals in Kenya?+
No. The Supreme Court only hears appeals under specific constitutional provisions, like Article 163(4)(a) for constitutional interpretation issues or Article 163(4)(b) with certification from the Court of Appeal. Not all cases qualify.
What does Article 163(4)(a) of the Kenyan Constitution say?+
It allows appeals to the Supreme Court from the Court of Appeal in cases involving the interpretation or application of the Constitution. The party must show that a real constitutional question was raised and decided by the lower courts.
Cite this brief
#Cite this brief
Caselaw, "Saisi v Director of Public Prosecutions & 2 others", Case Analysis (2020). Petition 39 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/18/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.