The provisions of the Constitution requiring the interpretation or application by the Supreme Court, had to be the same provisions upon which the Courts decision was based.

Brief facts

At the High Court, the appellants concerns were that the 2^nd to 16^th respondents conduct, in changing their political party while still holding office as Member of County Assembly (MCA), was in violation of national values and principles of governance; that they did not satisfy the moral and ethical requirements to continue serving in the County Assembly after being cleared as independent candidates; and that they were deemed to have resigned from the sponsoring party. The appellant pleaded that the respondents were in contravention of sections 2 and 45 of the Anti-Corruption and Economic Crimes Act, section 313 of the Penal Code and section 13(1) (b) of the Leadership and Integrity Act, and therefore did not satisfy the moral and ethical requirements to continue being MCAs.

The Committee did not address itself to any of those grounds, but instead downed tools, finding that it had no jurisdiction to entertain or determine issues involving constitutional interpretation and application; that a similar question was pending determination before the High Court and was, therefore, sub judice; and that it had no criminal jurisdiction to determine the guilt or otherwise of the respondents. 

Aggrieved by the Committees decision, the appellant sought to review it in the High Court at Kisumu by directly, without leave, lodging a notice of motion. The High Court dismissed the appellants application with costs to the respondents. The appellant appealed to the Court of Appeal and it was dismissed on the same grounds as in the High Court. 

Aggrieved the appellant filed the instant appeal before the Supreme Court. The appellant contended that his application at the High Court was competent as it was anchored on inter alia articles 47 of the Constitution and on sections 7(2) and 11(2) of the Fair Administrative Action Act; and that the procedure contemplated in the Law Reform Act and order 53 rule 1 of the Civil Procedure Rules were not applicable to his application. Furthermore, he faulted the High Court for failing to pronounce itself on the conduct of the 2^nd to 16^th respondents which amounted to resignation from the Assembly in accordance with Article 194(1)(e) of the Constitution.

Issues

What was the effect of invoking different constitutional provisions during an appeal at the Supreme Court on matters regarding interpretation and application of the Constitution where they appeared to be materially different from the constitutional questions challenged at the trial court?

Held

1. Jurisdiction was everything. If a court found that it did not have jurisdiction, it  had to down its tools at that point, save in exceptional circumstances. A point of jurisdiction could be raised at any time, formally by a notice of preliminary objection, grounds of opposition, viva voce during arguments, or by the Court suo motu because challenging the jurisdiction of a Court was a threshold issue. Jurisdiction could only be conferred on a court by either the Constitution or statute. A court could not expand its jurisdiction through judicial craft or innovation. Nor could a party confer on a court power it did not have. Parties could not by mutual consent confer jurisdiction when there was none.
2. Article 163(4), the Constitution provided that the Supreme Court was not to treat with levity any action or proceedings brought outside those limits because such an action would amount to an abuse of its process, recalling that not every grievance from the decision of the Court of Appeal lay to the Supreme Court. An appeal from the decision of the Court of Appeal had to meet the test under article 163(4)(a) and (b), upon which the Court had made several decisions over the years.
3. Whether or not the jurisdiction under article 163(4) of the Constitution had been properly invoked would depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed, or the decisions of the superior courts below, or in some cases, all the four. That required a party relying on article 163(4)(a), like here, to demonstrate that the grievance he had presented, concerns the application or interpretation of the Constitution. It was not the mere statement in the pleadings or submissions by a party to the effect that the appeal involved constitutional interpretation or application that clothed the Court with jurisdiction.
4. The party had to identify precisely the relevant articles of the Constitution, the subject of the impugned decision and further demonstrate that the subject of the appeal was the same issue in controversy and around which both the High Court and the Court of Appeal based their respective decisions on. Where the decision being challenged on appeal had nothing or little to do with the interpretation or application of the Constitution, such a decision could not be the subject of a further appeal to the Supreme Court.
5. It had to, as consequence, follow that the provisions of the Constitution cited by a party as requiring the interpretation or application by the Supreme Court, had to be the same provisions upon which the High Courts decision was based, and the subsequent subject of appeal to the Court of Appeal; in other words, the article in question must have remained a central theme of constitutional controversy, in the life of the cause. Whether a matter was originated as a judicial review application or a constitutional reference, the considerations were constant and the strictures of article 163(4)(a) of the Constitution had to be satisfied.
6. The grievance did not concern the application or interpretation of the Constitution. The cause in the High Court was distinctly short on the interpretation or application of the Constitution. The lengthy arguments about articles 23 and 47 of the Constitution had nothing to do with the original grievance. Their citation could be the basis for the assumption of the Supreme Court's jurisdiction.
7. The instant appeal having emanated from the High Court in a judicial review application, the appellant was required to identify the particular(s) of constitutional character that were canvassed at both the High Court and the Court of Appeal; and to demonstrate that both superior courts below had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
8. The decision being challenged in the instant appeal had nothing to do with the interpretation or application of articles 23 and 47 of the Constitution. The Supreme Court lacked jurisdiction, the appeal failed and the court downed tools at the instant stage. The instant case presented neither exceptional circumstances nor opportunity for the Supreme Court to provide interpretive guidance on the Constitution.