Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 6 of 2020

Wanyiri Kihoro v Attorney General

Supreme Court of Kenya
23 September 2020
1,699 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Supreme Court cannot hear appeals from Court of Appeal judgments final before 2010.

What this practically means

#

The Supreme Court dismissed an application by Hon Wanyiri Kihoro to review a 1993 Court of Appeal judgment. The Court said it has no power to hear appeals from final judgments of the Court of Appeal delivered before the 2010 Constitution. Even if the judgment was enforced later, that does not give the Supreme Court jurisdiction. This decision follows earlier cases that the Supreme Court only handles appeals from judgments after the 2010 Constitution.

Executive summary

#
The Supreme Court dismissed an application by Hon Wanyiri Kihoro seeking review of the Court of Appeal's refusal to certify an appeal to the Supreme Court. The intended appeal was against a Court of Appeal judgment delivered on 17th March 1993, long before the 2010 Constitution. The Applicant argued that because the judgment was only enforced in November 2011 through a High Court miscellaneous application, the cause of action continued until after the Constitution's promulgation, thereby conferring jurisdiction on the Supreme Court. The Court rejected this argument, holding that the enforcement action was merely an attempt to reap the fruits of an already final judgment and did not create a new cause of action. Relying on its precedents in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others and Tom Martins Kibisu v. Republic, the Court reaffirmed that Article 163(4)(b) is forward-looking and does not confer appellate jurisdiction over final judgments of the Court of Appeal rendered before the 2010 Constitution. Having found it lacked jurisdiction, the Court did not address the issues of delay or general public importance. The application was dismissed with no order as to costs.

Questions the Court framed

#

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

  1. 1.whether this Court has jurisdiction to hear this matter
  2. 2.whether the Application is tenable in view of the delay in filing it
  3. 3.whether the matters raised by the Applicant are of general public importance under Article 163(4)(b) of the Constitution

Key legal issues

#
01

Whether the Supreme Court has jurisdiction to hear an intended appeal against a Court of Appeal judgment delivered in 1993, before the 2010 Constitution.

Holding

The Supreme Court lacks jurisdiction because Article 163(4)(b) is forward-looking and does not apply to final judgments of the Court of Appeal delivered before the 2010 Constitution.

Reasoning

The Court relied on its precedents in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others and Tom Martins Kibisu v. Republic, which established that the Supreme Court has no jurisdiction over appeals from final judgments of the Court of Appeal rendered before the 2010 Constitution. The Applicant's enforcement action in 2009 did not create a new cause of action or extend the life of the original dispute for jurisdictional purposes; it was merely an attempt to enforce the already final judgment. Since the Court of Appeal was the highest court at the time of its 1993 judgment, no further appeal lay from it.

02

Whether the delay in filing the application for review is excusable.

Holding

The Court did not reach this issue because it found it lacked jurisdiction, which disposed of all other issues.

Reasoning

Having determined that it had no jurisdiction to entertain the application, the Court held that this finding of necessity disposed of the other two issues, including the question of delay.

03

Whether the matters raised by the Applicant are of general public importance under Article 163(4)(b).

Holding

The Court did not reach this issue because it found it lacked jurisdiction, which disposed of all other issues.

Reasoning

Having determined that it had no jurisdiction to entertain the application, the Court held that this finding of necessity disposed of the other two issues, including the question of general public importance.

Legal principles established

#
  • Supreme Court has no jurisdiction over appeals from final Court of Appeal judgments delivered before the 2010 Constitution.
  • Article 163(4)(b) of the Constitution is forward-looking, not retrospective.
  • Enforcing a final judgment does not extend the life of the original case for jurisdiction purposes.
  • If the Supreme Court lacks jurisdiction, it will not decide other issues like delay or public importance.
  • The binding precedents are Samuel Kamau Macharia and Tom Martins Kibisu.
  • No costs are awarded when jurisdiction is lacking.

Court orders

#
  1. 1.The Notice of Motion Application dated 4th March 2020, is hereby dismissed.
  2. 2.No Orders as to Costs.

The bench

#

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No. SUP 2 of 2016
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010

Relief refused

#

Review of the Court of Appeal's refusal to grant certification to appeal to the Supreme Court

The Supreme Court lacks jurisdiction because the final judgment of the Court of Appeal was delivered on 17th March 1993, before the 2010 Constitution, and the enforcement action did not create a new cause of action or confer jurisdiction.

Costs

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.

In Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others PARA 2012. eKLR and Tom Martins Kibisu v. Republic PARA 2014. eKLR this Court laid down the distinct principle that, it had no jurisdiction to entertain appeals from final Judgements of the Court of Appeal, before the promulgation of the 2010 Constitution.
p. 4 Jurisdiction of the Supreme Court
Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.
p. 4 Retrospectivity of Article 163(4)(b)
When the Applicant herein moved to the High Court in Miscellaneous Application No.52 of 2009, he was simply but importantly seeking to enforce the final Judgment and Orders of the Court of Appeal. He was seeking to reap the fruits of that Judgment. Such an application cannot be said to have sustained the cause of action until November 2011, so as to confer jurisdiction on this Court.
p. 4 Effect of enforcement proceedings on jurisdiction
The Notice of Motion Application dated 4th March 2020, is hereby dismissed.
p. 5 Final orders
No Orders as to Costs.
p. 2 Costs order

Key timeline

#
1993-03-17
Court of Appeal delivers final judgment against Hon Wanyiri Kihoro.
2009
Kihoro files enforcement application in High Court (Misc. App. No.52 of 2009).
2011-11
High Court enforces the 1993 judgment.
2020-03-04
Kihoro files Notice of Motion in Supreme Court seeking review.
2024-01-01
Supreme Court dismisses application for lack of jurisdiction.

Practical implications

#
For lawyers

Pre-2010 appeal routes closed

Lawyers must advise clients that final Court of Appeal judgments from before 27th August 2010 cannot be appealed to the Supreme Court. Any enforcement action taken later does not revive the right to appeal. Consider alternative remedies like constitutional petitions if applicable, but not as an appeal of the original judgment.

For businesses

Finality of old judgments confirmed

Businesses that won or lost Court of Appeals cases before 2010 can rely on the finality of those judgments. Opponents cannot reopen them in the Supreme Court by arguing continuing enforcement. This reduces litigation risk and costs for long-settled disputes.

For individuals

Old case outcomes are secure

Individuals with final Court of Appeal judgments from before 2010 should know the Supreme Court cannot revisit them. Even if you are still trying to enforce or collect what you were awarded, that does not give the Supreme Court power to hear the case again. The judgment stands.

Frequently asked questions

#
Can I appeal a pre-2010 Court of Appeal judgment to the Supreme Court in Kenya?+

No. The Supreme Court has ruled that it cannot hear appeals from final Court of Appeal judgments delivered before the 2010 Constitution. This applies even if the judgment was enforced later.

Does the Supreme Court of Kenya have jurisdiction over cases decided before 2010?+

The Supreme Court's jurisdiction under Article 163(4)(b) is forward-looking and does not apply to final Court of Appeal judgments before 2010. Only appeals from judgments after 2010 can be heard.

What happens if I try to enforce an old judgment and then appeal to the Supreme Court in Kenya?+

Enforcement of an old judgment does not create a new case or give the Supreme Court jurisdiction. The Court treats enforcement as simply collecting on a final decision, not extending the original case.

Which Kenyan cases established that the Supreme Court cannot hear pre-2010 appeals?+

The Supreme Court relied on Samuel Kamau Macharia v. Kenya Commercial Bank and Tom Martins Kibisu v. Republic. These cases set the rule that jurisdiction under Article 163(4)(b) is not retrospective.

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.

Cite this brief

#

Cite this brief

Caselaw, "Wanyiri Kihoro v Attorney General", Case Analysis (2020). Application 6 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/78/eng@2020-09-23

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