KLR: Appellate jurisdiction of the Supreme Court of Kenya explained

Peter Oduor Ngoge v Hon Francis Ole Kaparo & 5 others

Supreme Court of Kenya at Nairobi

Petition No 2 of 2012

JB Ojwang, NS Ndungu SCJJ

September 4, 2012

 “In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”

The dispute before the Court arose at the High Court, when the petitioner Peter Oduor Ngoge sought, by interlocutory motion, to secure orders barring the respondents from being represented. The High Court, after considering the matter, concluded that the petitioner’s objection was essentially diversionary and tendentious, and accordingly, dismissed the proceedings.

The petitioner, who felt aggrieved by the High Court’s decision, sought leave to appeal there from; but the High Court refused leave, whereupon he sought leave from the Court of Appeal. The Court of Appeal similarly, refused leave, taking the position that the proposed appeal was frivolous.

The petitioner in the Supreme Court departed from his initial perception that the interlocutory matter before the High Court was a question requiring leave to lodge an appeal; instead he framed his claims in the initial interlocutory matter as a major constitutional question, which must be taken up on appeal to the Supreme Court as of right.

Mr. Ngoge, counsel for the petitioner, argued that the Supreme Court’s core duty was to hear appeals from the Court of Appeal as of right in any case involving the interpretation or application of the Constitution of Kenya,2010, under Article 163(4)(a) and that his grounds of appeal were generally to the effect that the respondents violated his fundamental human rights with the complicity of a recalcitrant High Court and Court of Appeal.

He urged that the appellant disclosed serious allegations of human rights abuses involving State officers and State organs and that those automatically gave the Supreme Court supervisory appellate jurisdiction to hear the appeal and to make full inquiries. Mr. Ngoge urged that Article 163(4)(a) as read with Articles 10, 19, 20, 21, 159, 258 and 259 of the Constitution, gave the Supreme Court supervisory appellate jurisdiction to hear the appeal with the view of realizing its object and purpose as a Court of last resort upholding fundamental human rights and the Constitution, in the process of supervising the High Court and the Court of Appeal.

Counsel urged that on such imperative grounds, it appeared strange to the Supreme Court that the respondents who were accused of violating the appellant’s fundamental human rights and the Constitution were the ones causing an unnecessary spectacle by urging the Supreme Court eloquently to down tools and shut its doors on the appellant.

Mr. Ngoge submitted that the Supreme Court could not uphold the Constitution and the fundamental rights of the individual and the rule of law if there is any limitation to the possibility of accessing that Court automatically. Consequently, he urged, the question of jurisdiction raised by the respondents should be treated very cautiously, carefully and with a lot of trepidation because of the great risks of shutting the doors of the Supreme Court on a genuine appellant.

Mr Ngoge stated that the grounds of appeal herein disclosed a constitutional cause of action which gave the Supreme Court jurisdiction to sit and make full inquiries on the complaints made by the petitioner under Article 163(4)(a) as read with Articles 258 and 259 of the Constitution.

The respondents, Hon Francis Ole Kaparo & 5 others contended that the petitioner’s appeal did not lie on grounds of jurisdiction: for the Court of Appeal’s decision being contested was one expressly denying leave to appeal against a High Court decision which refused the petitioner’s application for the review of a decision.

The said decision, in relation to which a review had been sought, was the “decision not to bar the 5th respondent...from acting on behalf of the 2nd respondent.” It was contended that section 19(b) of the Supreme Court Act, 2011 safeguards the said Court of Appeal decision, and hence the Supreme Court lacked jurisdiction to entertain an appeal on the matter.

The respondents affirmed that the petitioner had invoked fundamental-rights provisions in vain, as a basis for initiating a constitutional petition in which it claimed that the petitioner’s rights had been violated by the High Court and the Court of Appeal. One issue for determination was whether it was proper to bring such a case as an appeal before the Supreme Court.

To this, counsel for the respondent argued that Article 163 of the Constitution provides that authorises the regulation of the Supreme Court’s exercise of its powers by ordinary legislation; and section 19 of the Supreme Court Act is relevant as it provides that the Supreme Court shall hear and determine appeals from the Court of Appeal or any other court or tribunal against any decision made in proceedings, only to the extent that the decision is not a refusal to grant leave to appeal to the Court of Appeal.

The respondents on the other hand submitted that the proceedings before the Court of Appeal, against which the petitioner moved the Court, was an application for leave under the rules of that Court and not a case involving the interpretation or application of the Constitution. The court was also urged to take a purposive approach in developing the constitutional law, which they argued, the Court may adopt, that there should be a restriction of rights to appeal to the Supreme Court against decisions of the Court of Appeal denying leave to appeal; for the requirement for leave helped to sieve out at the earliest possible stage frivolous appeals, allowing judicial time and resources to be dedicated to serious appeals.

The respondents also submitted that the Supreme Court’s adjudicatory powers must be restricted to matters of sufficient weight and importance warranting authoritative guidance, consistent with the objects set out in the Supreme Court Act, 2011, section 3. Counsel contended that this petition did not fall within the larger objects of the Supreme Court, as defined and that the Court was to be guided by practical considerations of justice; and that, not every single instance of alleged error by the Court of Appeal should be reviewed by the Supreme Court.

In view of these submissions, the Court held that the appellate jurisdiction of the Supreme Court was defined clearly enough under Article 163 of the Constitution, and section 19 of the Supreme Court Act and the petitioner’s case that had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court.

The Court was also of the view that the petitioner had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court.

It pronounced that there was nothing improper with the rulings delivered by both the High Court and the Court of Appeal, holding the petitioner’s interlocutory proceedings to be merely frivolous.

Lastly, the court stated that in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

(Petition dismissed at the preliminary stage)