Principles to be complied with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review
The appellant was the nominated Safina political party presidential candidate for the August 9, 2022 general elections. On June 6, 2022 he presented his nomination papers before the 1st respondent, the duly gazetted returning officer for the presidential election, for registration as candidate. Upon examining the documents, the 1st respondent ruled that the appellant was unqualified to be nominated to contest in the presidential election and rejected his candidature based on the following reasons: lack of a university degree; lack of nomination by at least 2,000 voters each from at least 24 counties; and lack of a nomination certificate by Safina Political Party for the appellants running mate.
Aggrieved, the appellant lodged a complaint with the 3rd respondent, the Independent Electoral and Boundaries Commission Disputes Committee (the Committee) challenging the validity of the grounds upon which the 1st respondent refused to register him. The Committee dismissed the complaint and upheld the 1st respondents decision. Aggrieved by the Committees decision, the appellant commenced judicial review proceedings at the High Court. The High Court dismissed the application with costs for lacking merit. The court held that based on the traditional limits of judicial review, a judicial review court did not assume appellate jurisdiction or a merit review or interrogation of facts upon which an impugned decision was made, but only the decision-making process.
Further dissatisfied, the appellant lodged an appeal to the Court of Appeal which dismissed the appeal with costs to the respondents. Aggrieved by the Court of Appeals decision, the appellant filed the instant appeal at the Supreme Court. In opposing the appeal, the 1st and 2nd respondents filed a preliminary objection challenging the courts jurisdiction. It was the 1st and 2nd respondents argument that the appeal did not raise any matter involving the interpretation or application of the Constitution of Kenya, 2010 (Constitution) as contemplated under article 163(4)(a) of the Constitution.
- What were the requirements for one to appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution?
- What were the principles to be complied with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 163 - Supreme Court
(4) Appeals shall lie from the Court of Appeal to the Supreme Court
(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
1. Jurisdiction was a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court was obligated to down its tools as it did not have the power to adjudicate upon the proceedings before it. A courts jurisdiction normally emanated from either the Constitution or legislation or both.
2. The Supreme Courts appellate jurisdiction was set out in article 163(4) of the Constitution. The issues that the court would exercise its jurisdiction over pursuant to article 163(4)(a) were only issues involving the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. A question identified as involving interpretation or application of the Constitution thus had to be one that was argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally in the instant court.
3. Mere allegation by a party that a question of constitutional interpretation or application was involved did not automatically bring the appeal within the ambit of article 163(4)(a) of the Constitution, unless the party could show that the matter by virtue of the courts determination took a constitutional trajectory of interpretation and application.
4. By no means was the court an open forum for all cases from the appellate court on judicial review matters. Each appeal was to be considered on its merits on a case-to-case basis. Only causes bearing a real constitutional issue could be heard by the court and a plain claim that a matter raised issues of interpretation or application of the Constitution did not suffice. The principles a party should comply with when appealing to the Supreme Court in a matter which had originated in the High Court by way of judicial review were as follows;
- not all judicial review matters were appealable to the Supreme Court, as of right;
- it was open to the party concerned to move the court on appeal under article 163(4)(b) of the Constitution, in which, the normal certification process applied;
- where such an appeal came under article 163(4)(a) the Constitution, the petitioner was to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal;
- the party concerned should demonstrate that the superior courts 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.
5. A question regarding the interpretation or application of the Constitution could arise from a multiplicity of factors and interrelationships in the various facets of the law, and the Constitution should be interpreted broadly and liberally so as to capture the principles and values embodied in it.
6. The Court of Appeal addressed each of the appellants grievances. The main grievance was the qualification of the appellant based on section 22(2) of the Elections Act and as read with regulation 47(1) of the Elections (General) Regulations. The court also made reference to article 137(1) of the Constitution, section 23 of the Elections Act and regulations 23 and 18 of the Elections (General) Regulations and article 148 of the Constitution. While the provisions and grievances by the appellant were underpinned on article 38 and 83(3) of the Constitution, the gravamen of the dispute had nothing to do with the interpretation or application of the Constitution but rather a factual exercise by the superior courts below to evaluate the appellants compliance. None of the provisions of statute were by themselves under challenge.
7. Although the appellant cited several provisions of the Constitution, he had not set out, to any extent and to the courts satisfaction, the manner in which the superior courts interpreted and applied the Constitution one way or the other. It could not thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to the instant court under article 163(4)(a) of the Constitution. The appellant seemed to be inviting the court to reprise the evidence and be persuaded as to make a conclusion that resonated with his. That was an invitation that the court had to decline.
8. Despite asking the court to determine the matter for the sake of posterity, the appellant had not shown of the existence of any constitutional moment to be seized and the extent of such moment. The provisions of the Constitution not being in contention, qualifications and nomination of candidates would continue to be addressed as and when they arose based on peculiar circumstances obtaining.