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Supreme CourtDismissedApplication 6 (E012) of 2022

Wanjigi v Chebukati & 2 others

Supreme Court of Kenya
18 July 2022
2,265 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses Jimi Wanjigi’s bid to stop ballot printing for failing to show jurisdiction.

What this practically means

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Jimi Wanjigi wanted to stop the printing of ballot papers for the 2022 presidential election. He asked the Supreme Court to intervene after losing at the Court of Appeal. The Supreme Court said it could not hear his case because he did not properly explain how his appeal involved interpreting the Constitution. Without jurisdiction, the Court could not grant any orders to stop the election process.

Executive summary

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This was an application by Jimi Richard Wanjigi, who sought to contest as a presidential candidate in the 2022 Kenyan general election, for conservatory orders to stop the printing of ballot papers pending the hearing and determination of his petition against the Independent Electoral and Boundaries Commission (IEBC) and others. The application was filed under Article 163(4) of the Constitution. The applicant argued that the Court of Appeal's judgment dismissing his appeal created a legal crisis by allowing subordinate courts to ignore binding decisions and by rejecting merit review in judicial review proceedings. The respondents opposed the application on two main grounds: that the Supreme Court lacked jurisdiction because the applicant failed to properly invoke its jurisdiction under Article 163(4), and that public interest militated against granting the orders, given the constitutional timelines for the election. The Supreme Court, in a unanimous ruling, disallowed the application. The Court found that the applicant had failed to demonstrate that it had jurisdiction under Article 163(4). The Court noted that the applicant's pleadings were ambiguous, referencing both Article 163(4)(a) (appeal as of right) and Article 163(4)(b) (appeal by certification) without properly invoking either. The Court emphasized that these two jurisdictions are separate and cannot be jointly invoked. The Court also noted that the Court of Appeal judgment was brief without reasons, making it impossible to determine the appeal on its merits. Consequently, the Court could not consider the conservatory relief sought. The Court made no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction to determine the application and petition under Article 163(4) of the Constitution.
  2. 2.Whether the applicant meets the threshold for conservatory relief pending the determination of the petition.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal under Article 163(4) where the applicant fails to specify whether the appeal is as of right under Article 163(4)(a) or by certification under Article 163(4)(b).

Holding

The Court lacks jurisdiction because the applicant failed to properly invoke the Court's jurisdiction by specifying which limb of Article 163(4) applies and demonstrating the constitutional interpretation or application involved.

Reasoning

The Court noted that the applicant's pleadings were ambiguous, referencing both Article 163(4) generally and raising grounds of general public importance without certification. The Court emphasized that the two jurisdictions under Article 163(4)(a) and (b) are separate and cannot be jointly invoked. The applicant did not identify which specific constitutional provisions were subject of the appeal, nor did he demonstrate that the matter involved interpretation and application of the Constitution as required for an appeal as of right. Additionally, there was no certification under Article 163(4)(b). The Court also noted that the Court of Appeal judgment was brief without reasons, making it impossible to determine the appeal on its merits.

02

Whether conservatory orders can be granted pending the determination of a petition where the Court lacks jurisdiction over the petition.

Holding

Conservatory orders cannot be granted where the Court lacks jurisdiction over the main petition.

Reasoning

The Court found that since the applicant failed to demonstrate that the Court had jurisdiction over the petition, it could not consider or grant the conservatory relief sought. The Court also noted that the petition could not be heard before the reasons for the Court of Appeal judgment were provided, making any conservatory relief premature.

Legal principles established

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  • An appeal to the Supreme Court under Article 163(4)(a) must clearly show that the case involved interpreting and applying the Constitution.
  • The two routes to the Supreme Court—appeal as of right and appeal by certification—are separate and cannot be used together in one case.
  • A party must specify which constitutional provisions are at issue to invoke the Supreme Court’s jurisdiction.
  • The Supreme Court cannot grant temporary orders if it has no jurisdiction over the main case.
  • A brief Court of Appeal judgment without reasons makes it impossible for the Supreme Court to assess the appeal on its merits.

Court orders

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  1. 1.The Notice of Motion Application dated 13th July 2022 and filed on 14th July 2022 be and is hereby disallowed.
  2. 2.We make 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
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No.E404 of 2022
Jurisdiction invoked
Article 163(4) of the Constitution

Relief refused

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Conservatory orders to stop the printing of ballot papers for the presidential elections pending the hearing and determination of the petition.

The Court found it lacked jurisdiction to consider the application because the applicant failed to properly invoke the Court's jurisdiction under Article 163(4).

Directions to preserve the substratum of the petition.

The Court found it lacked jurisdiction and the petition could not be heard before the reasons for the Court of Appeal judgment were provided.

Costs

We make 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.

the applicants have failed to exhibit that they meet the threshold for invoking our jurisdiction. With the above finding, we are unable to consider or grant the conservatory relief sought pending the determination of the status of the petition of appeal whose jurisdiction is also under challenge by way of preliminary objection.
p. 4 Jurisdiction of the Supreme Court
for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court.
p. 4 Appeal as of right under Article 163(4)(a)
These jurisdictions are separate and cannot be jointly invoked in the same proceedings.
p. 4 Separation of jurisdictions under Article 163(4)
even when a party invokes the jurisdiction as of right, it is upon the party to identify and specify how the appeal concerns interpretation and application of the Constitution.
p. 4 Burden on the appellant to specify constitutional interpretation
There can be no basis, we think, upon which the petition as currently drawn can be jurisprudentially determined in the absence of reasons for judgment.
p. 4 Effect of absence of reasons for judgment

Key timeline

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2022-07-13
Jimi Wanjigi files notice of motion at Supreme Court seeking conservatory orders to stop ballot printing.
2022-07-14
Application is filed and subsequently heard by the Supreme Court.
2022- unspecified
Supreme Court delivers ruling disallowing the application, finding lack of jurisdiction.

Practical implications

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For lawyers

Draft appeals with precision

When filing a Supreme Court appeal, clearly state whether it is under Article 163(4)(a) or (b). Do not cite both limbs vaguely. Specify the constitutional provisions allegedly interpreted or applied. Failure to do so will result in dismissal for lack of jurisdiction, as seen here. Prepare a concise memorandum identifying the exact constitutional issues that were litigated in the High Court and Court of Appeal.

For businesses

Election timelines protected

For individuals

Know your legal route to the top court

If you want to appeal to the Supreme Court, you must correctly identify whether your case qualifies as an automatic appeal (involving constitutional interpretation) or requires certification. Check with a lawyer: simply stating 'general public importance' is not enough. Wanjigi’s case was thrown out because he mixed both paths without specifying. Get legal advice early to avoid wasted time and costs.

Frequently asked questions

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Why did the Supreme Court dismiss Jimi Wanjigi’s case in Kenya?+

The Court dismissed it because Wanjigi did not properly show that his appeal involved interpreting the Constitution. He invoked both types of appeal (as of right and by certification) without specifying which one applied. The Court said it lacked jurisdiction and therefore could not issue any orders.

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

Article 163(4) gives the Supreme Court two ways to hear appeals: (a) automatically for cases involving constitutional interpretation that started in the High Court and went to the Court of Appeal, and (b) by certification from the Court of Appeal that the case raises a matter of general public importance. They cannot be used together.

Can I stop an election in Kenya through a court order?+

Only if the court has jurisdiction over the main case. The Supreme Court in Wanjigi’s case said it cannot grant a temporary order (like stopping ballot printing) if it does not have the power to hear the appeal itself. You must first clearly establish that the court can hear your case.

What happened to Jimi Wanjigi’s attempt to be a presidential candidate in Kenya?+

Wanjigi challenged the IEBC’s decision that excluded him from the 2022 presidential ballot. He lost at the High Court and Court of Appeal. When he tried to appeal to the Supreme Court, his application was dismissed because the Court found it had no jurisdiction to hear the appeal.

Later judgments citing this (1)

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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, "Wanjigi v Chebukati & 2 others", Case Analysis (2022). Application 6 (E012) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/40/eng@2022-07-18

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