Wanjigi v Chebukati & 2 others
The bottom line
#Supreme Court dismisses Jimi Wanjigi’s bid to stop ballot printing for failing to show jurisdiction.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to determine the application and petition under Article 163(4) of the Constitution.
- 2.Whether the applicant meets the threshold for conservatory relief pending the determination of the petition.
Key legal issues
#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).
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.
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.
Whether conservatory orders can be granted pending the determination of a petition where the Court lacks jurisdiction over the petition.
Conservatory orders cannot be granted where the Court lacks jurisdiction over the main petition.
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
#- 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
#- 1.The Notice of Motion Application dated 13th July 2022 and filed on 14th July 2022 be and is hereby disallowed.
- 2.We make no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No.E404 of 2022
- Jurisdiction invoked
- Article 163(4) of the Constitution
Relief refused
#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
#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.
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.
These jurisdictions are separate and cannot be jointly invoked in the same proceedings.
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.
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.
Key timeline
#Practical implications
#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.
Election timelines protected
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
#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)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamande v Republic[2025] KESC 18 (KLR)11 Apr 2025followed
Cite this brief
#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.