Nyamboki v Attorney General & 3 others

aside the decision of the High Court and ordered the transfer of 2½ acres of the suit property to the 4th respondent. This court further ordered that the appellant herein, sign all the necessary documentation to facilitate the transfer; failure to do so, the Registrar of this Court was authorized to facilitate the same. In the alternative, this Court directed the appellant to refund a sum of money equivalent to the current market value of the suit property after valuation by a competent licensed land valuer. 4. Subsequently, from the record, the appellant sought to stay execution, asked for review and setting aside of that judgment in Civil Application No. 39 of 2015, primarily on the grounds that he was denied a fair hearing alleging that the court did not consider his written submissions. The application was dismissed vide this Court’s (Karanja, Warsame, Azangalala, JJ.A) ruling dated 27th May 2016. 5. Following this dismissal, the appellant sought leave to appeal to the Supreme Court in Civil Application No. 142 of 2016, which this court declined in a ruling dated 17th November 2017, following the nding that the application did not raise any matter of general public importance. 6. The appellant then led an Originating Summons directly to the Supreme Court vide Application No. 22 of 2017, seeking a review of this Court’s refusal to allow the matter to proceed to the Supreme Court, raising as well a question whether the Court of Appeal failed, neglected and/or refused to consider the eect of introduction of written submissions as one of the modes of administration of justice. It was dismissed on 5th October 2018. A nal attempt to seek an extension of time to le a Notice of Appeal from the Supreme Court vide application dated 20th February 2019 was also dismissed. 7. Undeterred, the relentless appellant went back to the High Court and led Petition No. 261 of 2019, asserting that the Court of Appeal had violated his fundamental rights to a fair hearing and access to justice in the previous proceedings, primarily by not considering his submissions. On 29th April 2020, the High Court (J.A Makau, J) dismissed the petition, upholding a preliminary objection that the High Court lacked jurisdiction to review or annul a judgment from a superior court like the Court of Appeal. This dismissal is the subject of the present appeal before us. 8. The appellant has proered eleven grounds of appeal, which we have summarized as follows; that the learned Judge erred in law and fact by allowing the preliminary objection; in holding that his petition was meant to overturn the judgments of the Court of Appeal and Supreme Court; in holding that the Court of Appeal and the Supreme Court had ruled that the appellant’s constitutional rights had not been violated; by misinterpreting and misapplying the provisions of Articles 164(3) and 165 (6) of the Constitution; by failing to consider and/or construe the constitutional jurisdiction of the High Court as enshrined in Articles 2,19,20,21,22,23,27 and 28 of the Constitution; by holding that the subject matter of the petition before the court had been determined by the Court of Appeal and Supreme Court and nal decision made when there was no such nding touching on violations of the appellant’s constitutional rights; in holding that the petition was bad in law, incompetent and misconceived and an abuse of process of the court; in failing to appreciate the fact that the Court of Appeal had made a nding of fact and law that the appellant’s right to fair trial had been compromised; limiting the mandate of the High Court; being biased against the appellant; failing and/or ignoring his authorities by ignoring the principle of precedents and further failing to consider and apply the Court of Appeal and Supreme Court decisions. 9. In the appellant’s written submissions that were orally highlighted by his counsel, Mr. Manyara, it was submitted that the appellant’s right to a fair hearing under Article 50 (1) was fundamentally breached by the Court of Appeal, as the Court delivered its judgment without according him the chance to be heard or considering his written submissions. Counsel submitted that the High Court has exclusive and original jurisdiction under Articles 23 and 165 (3) to redress any violation of the Bill of Rights. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1924/eng@2026-09-25 2

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Counsel submitted that the appellant was not invoking the High Court’s supervisory jurisdiction, rather, the appellant was seeking constitutional redress. 10. It was submitted that the issues in dispute could not be decided through a preliminary objection, specically, that the 4th respondent led a replying adavit denying issues of fact. 11. On the application of the doctrine of stare decisis, counsel submitted that the Supreme Court never addressed the actual merits of the violation of right to hearing, instead, the Supreme Court’s ruling was limited to an application for certication regarding matters of general public importance. 12. Several authorities were cited in support of the appellant’s submissions that the High Court has jurisdiction in constitutional enforcement, including Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2013] eKLR, Daniel Maingi Muchiri v. Jubilee Insurance Company Limited [2017] eKLR, Protus Buliba Shikuku v. Attorney General [2013] eKLR, and Kenya Hotel Properties Limited v. Attorney General & 5 Others [2015] eKLR 13. In the 4th respondent’s written submissions that were orally highlighted by its counsel, Mr Owiti, it was submitted that the High Court lacks the constitutional mandate to review, inquire into, or annul a decision made by the Court of Appeal. Counsel submitted that Article 165(6) of the Constitution expressly limits the High Court’s supervisory jurisdiction to subordinate courts. 14. It was further submitted for the 4th respondent that the issues raised by the appellant had already been conclusively determined through multiple rulings by the Court of Appeal and the Supreme Court. Counsel argued that the appellant is attempting to reopen a nalized suit and termed the appellant’s actions as an abuse of the court process and an aront to the doctrine of stare decisis. 15. The 4th respondent also relied on several authorities on jurisdiction, including Kenya Hotel Properties Limited v. Attorney General & 5 others [2020] eKLR, Yusuf Gitau Abdalla v. Building Centre (K) Ltd & 4 Others [2014] eKLR, Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2007] eKLR, Dodhia v. National & Grindlays Bank Limited [1970] EA 195 16. We have carefully considered the record of appeal, the written submissions led by the parties, the oral highlights by counsel, and the law. This Court is called upon to determine whether the High Court erred in dismissing the appellant’s petition for lack of jurisdiction. 17. The appellant feels that he was not accorded a fair hearing solely on the ground that this Court did not consider his written submissions, which the High Court found to be a matter that had already been addressed by this Court as well as the Supreme Court, and proceeded to invoke the doctrine of stare decisis. The High Court went on to nd that it did not have jurisdiction to hear the Petition and laid down its tools. 18. The appellant is adamant that his constitutional rights to a fair hearing under Article 50 (1) of the Constitution were breached as this Court proceeded to prepare a judgment without his written submissions. 19. We will, therefore, provide an overview of what transpired in this matter, again, as this court, dierently constituted, did the same in its ruling of 27th May 2016. From the record, Civil Appeal No. Appeal 184 of 2004 came up for hearing before this Court on 30th October 2014. By consent, the parties agreed to dispose of the appeal by way of written submissions, and the Court ordered the 1st respondent to le and serve his submissions within fourteen days, and the appellant was granted a similar timeframe. The respondent was granted a further seven days to respond to the appellant’s submissions. It is common ground that the respondent led his submissions out of the stipulated timeframe on 24th November 2014; the appellant claimed it was never served. The appellant only led his submissions on 22nd https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1924/eng@2026-09-25 3

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January 2015, after the court sent out a notice of delivery of judgment on 19th January 2015, at which time the judgment had already been prepared. 20. The appellant sought to have the decision of this Court reviewed on the basis that its submissions were not on record, and this Court has held as follows: “ The question that we must now address is whether or not the applicant has satised the parameters that have been set out above, and whether a gross injustice was occasioned to him. In our view, the applicant has not satised this court that his application for review falls within this purview. The fact that the court was constrained to prepare a judgment without his written submissions did not materially aect the judgment of the Court. We remind ourselves that the duty of this court when hearing an appeal is to re-evaluate and reconsider the evidence that was tendered at trial. There is no evidence that even if the applicant’s submissions were not on record, that the evidence tendered by him at the trial stage was not considered…” 21. In rst appeals from a decision of the trial court, the mandate of this Court is as explicitly set out in rule 31(1) of the Rules of this Court, which provides: “ 1) 22. On any appeal from a decision of a superior court, acting in exercise of its original jurisdiction, the Court shall have power – a. To re-appraise the evidence and to draw inferences of fact; and b. In its discretion and for sucient reason, to take additional evidence or direct that additional evidence be taken by the trial court. The Court has gone further and outlined the parameters in the exercise of that mandate in a plethora of case law. We take it from the often-cited case of Selle vs Associated Motor Boat Co. [1968] E. A 123, where the Court of Appeal for Eastern Africa set out the principles to be considered when determining an appeal from the High Court as: “ ...this court is not bound necessarily to accept the ndings of fact by the court below. An appeal to this court ... is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...” 23. The input of the above guidelines is that even without written submissions, the Court is fully equipped to look at the original High Court trial les and pleadings and make an independent determination. This Court found that the petitioner’s constitutional rights were not violated by his submissions not being on record. The High Court, under Article 165 (3)(b), is bestowed with the jurisdiction to determine the question as to whether a right or fundamental freedom in the Bill of Rights has been violated, infringed, or threatened. This question was, however, already dealt with by this Court specically in its ruling of 27th May 2016 in Civil Appeal No. Appeal 184 of 2004 and by the Supreme Court when it dismissed the appellant’s Originating Summons on 5th October 2018. 24. We therefore agree with the trial court that indeed, the matter revolving around the appellant’s written submissions, which was the crux of his petition, was handed by this court and a nal decision made. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1924/eng@2026-09-25 4

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The high court was bound by that decision, and it did not have the jurisdiction to reopen, hear, and decide on the same issue. Article 165 (6) of the Constitution bars the High Court from exercising oversight over superior courts. It provides; “ 6) 25. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. The Supreme Court pronounced itself on the question of jurisdiction in the case of Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, [2012] eKLR, as follows; “ A Court’s jurisdiction ows from either the Constitution or legislation, or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation…” 26. A court can only assume jurisdiction bestowed upon it by the Constitution and/or Statute. A court cannot assume jurisdiction by way of judicial craft or of a litigant’s pestering, see (Abdallah v Building Centre (K) Ltd & 4 other [2014] KESC 50 (KLR). 27. We asked counsel for the appellant the same question R.S.C Omolo, JA, asked in Jasbir Singh Rai & 3 Others V Tarlochan Singh Rai & 4 Others [2007] Keca 132 (KLR) and we did not get a very clear answer from Mr. Manyara, what would happen to the decision of this Court if the High Court were to nd that this Court had violated the appellant’s fundamental right? Would the High Court set aside the decision of the Court of Appeal? R.S.C Omolo JA, had the following to say when faced with a similar situation in the present appeal; “ I have said enough, I believe, to show that when one considers our statutory position and the authorities based on the statutes, this Court still has no jurisdiction to re-open, re-hear, and then recall its earlier decision and substitute it with another. Nor do I subscribe to the view expressed by Mr. Oraro that a party who feels that the Court, by its decision, has injured his or her fundamental right has the right to go to the High Court so that that court can, in eect, reverse the decision of this Court made on an appeal from a decision emanating from the very same High Court. It is to be remembered that there is an appeal from the decision made by the High Court pursuant to the provisions of the Constitution, and in my view, it would be an absurd situation to keep moving from the Court of Appeal back to the High Court and then back to the Court of Appeal again. I have always thought the law is no friend of absurdities.” 28. Arising from the foregoing, it is clear that the grievance by the appellant regarding submission was addressed multiple times by this Court and by the Supreme Court before he went back to the High Court to restart the very same issue and which he rides on as the substratum underlying the present appeal. The High Court was right in entertaining the preliminary objection and upon careful consideration, we cannot nd fault in the impugned ruling of the superior court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1924/eng@2026-09-25 5

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29. In the result, appeal lacks merit and is hereby dismissed with costs to the 2nd respondent. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 L. ACHODE ………………………… JUDGE OF APPEAL PAUL LILAN ………………………… JUDGE OF APPEAL DR. J.O. OKELLO ……………………….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1924/eng@2026-09-25 6

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