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Abstract
Article 165(3)(d) confers the High Court with the jurisdiction to hear any question respecting the interpretation of the constitution. This begs the question, can the High Court review decisions of the Supreme Court that infringe constitutional rights such as the right to fair hearing? Can it overturn such a decision on the grounds that it is unconstitutional, unreasonable and against the rules of natural justice? This is in reference to the unanimous decision of the Supreme Court judges to permanently bar Senior Counsel, Ahmednasir, together with advocates in his firm, from appearing before the court and making submissions. Can the binding effect of the Supreme Court Decision defeat the authority of the High Court under Article 165(3)(d) of the Constitution of Kenya? What is the effect of article 165(6) of the Constitution of Kenya?
Introduction
Article 165(6) stipulates that 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. Article 165 of the Constitution grants the High Court wide jurisdiction, however, there is a constitutional caveat that the High Court cannot supervise other superior courts. Superior courts in terms of Article 162(1) of the constitution are the Supreme Court, the Court of Appeal and courts of equal status namely; the Employment and Labour Relations Court and the Environment and Land Court.
Jurisdiction is everything as it denotes the authority or power to hear and determine judicial disputes. In R v. Karisa Chengo, it was held that jurisdiction is that which grants a court authority to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission, and may be extended or restricted by like means. Moreover, it was held that where a court takes upon itself to exercise a jurisdiction which it does not possess, its decisions amount to nothing; jurisdiction must be acquired before judgement is given. In the case of Samuel Macharia, the Supreme Court held that the jurisdiction of the court flows from either a constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the constitution or other written law. Moreover, a court cannot arrogate to itself jurisdiction exceeding that which is conferred to it by law. The Supreme Court further held in the matter of the Interim Independent Electoral Commission (applicant), where the constitution exhaustively provides for the jurisdiction of a court, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or imagination.
In Constitutional Petition No. 438 of 2015, the appellant sought for the High Court to annul a decision of the Court of Appeal and that the matter be heard de novo. The appellants also sought for the High Court to instruct the Court of Appeal to open a closed appeal. The learned judge held that this would undermine the the authority of the Court of Appeal by another superior court but inferior to it. That it would be against the clear words of article 165(6) of the Constitution and against the judicial hierarchical norms. Moreover, the judge held that the intention of the framers of the constitution in including Article 165(6) was to confine the jurisdiction of the court to matters referred to in Article 1565(3), (4) and (7) even when exercising its jurisdiction under Article 22 and 23(1), (3) of the constitution in enforcing the bill of rights.
Aggrieved by the decision of the High Court, the appellant filed Nairobi Civil Appeal No. 404 of 2018. Here, the Court of Appeal agreed with the High Court that it lacked jurisdiction to reverse a decision of the Court of Appeal as it lacks jurisdiction to supervise superior courts. It was the court’s view that the appellant was inviting the learned judge to defy constitutional barriers to the extent of his jurisdiction and tread on forbidden ground. The appellate court found that the trial court downed its tools in compliance with the express jurisdictional caveat explicit in article 165(6) of the constitution.
What then are the possible avenues for redress? One of the options would be to seek redress via the alternative dispute resolution mechanisms under article 159(2)(c) of the constitution if the judges of the Supreme Court were so aggrieved by the posts of Senior Counsel, Ahmednasir. Cognizant that this was not the case, can the Supreme Court of Kenya review its own decision?
The Supreme Court of Kenya is the Highest Court in Kenya as established under Article 163 of the Constitution. To this extend, its decisions are binding and set precedent on all other courts in the country. This is descended from one of the fundamental doctrines of common law which is captured in the maxim stare decisis et no quieta movere. Additionally, it is the general rule that once a court has duly pronounced a final order, it becomes functus officio. By invoking section 21(4) of the Supreme Court Act 2011 and Rule 28(5) of the Supreme Court Rules 2020, the applicant can seek to move the court to exercise two (2) distinct jurisdictional powers; correcting an oversight or clerical error and review of its own decision. The Supreme Court accentuated its position as what entails “Slip Rule” in paragraph 85 of the Fredrick Otieno Outa Case. It held that by nature, the Slip Rule permits a Court of Law to correct errors that are apparent on the face of the Judgement, Ruling, or Order of the Court. These errors must be so obvious that their correction cannot generate any controversy. In that, by the same token, such errors must be of such nature that their correction would not change the substance of the judgement or alter clear intention of the court.
The Slip Rule does not confer upon a court, any jurisdiction or powers to sit on appeal over its own judgement, or, to extensively review such judgment as to substantially alter it. Thus, the Supreme Court lacks the jurisdiction to hear appeals from its own rulings or to reassess its decisions, except as outlined in Section 21(4) of the Supreme Court Act. This special jurisdiction is limited to four (4) circumstances. First, where the judgement, ruling or order was obtained through fraud, deceit or misrepresentation of facts. Secondly, where the judgement, ruling or order is a nullify by virtue of being made by a court which was not competent. Thirdly, where the court was misled into giving a judgement or under belief based on the false assumption that the involved parties have given consent. Lastly, in instances where a decision, ruling or order is issued based on a law that has since been repealed, or due to an intentional hiding of a statutory provision. Where a case fails to disclose any of the four (4) issues, the suit will be dismissed as it is considered a disguised appeal that seeks to reopen matters already determined with finality by the court.
Conclusion
The slip rule is not an avenue to afford a losing party an opportunity to re-litigate a matter merely because such a party is dissatisfied by the outcome of the case. In Rai v Rai case, the Supreme Court reviewed the decision it had given in the Macharia case on the constitutionality of Section 14 of the Supreme Court Act where it distinguished its previous position by declaring the section unconstitutional.
