By Elvis Mogesa

The Supreme Court of Kenya is bestowed with different types of jurisdictions.[i] The appellate jurisdiction prescribed in Article 163(4)(a) has often proved to be a legal conundrum. The substance of this provision is that the Supreme Court shall listen to appeals from the Court of Appeal that are as of right involving the interpretation or application of the Constitution. Jimi Wanjigi sought to approach the Supreme Court using this path claiming that the appeal involved the interpretation and application of provisions such as Article 38 on his political rights, but the court abjured this position.[ii] Let us explore why.

Jimi Wanjigi first approached the High Court in form of a judicial review challenging the decision of the IEBC Dispute Resolution Committee (IEBC DRC) rejecting his presidential bid on three grounds:

i)He did not have enough supporters' signatures in the counties of Siaya and Nairobi,[iii]
ii)His running mate lacked a nomination certificate[iv] and
iii)He lacked a university degree.[v]

He sought an order of certiorari quashing this decision and further an order of mandamus directing the first respondent (Wafula Chebukati) to add his name in the presidential ballot papers.[vi]

Justice Jarius Ngaah after hearing the matter held that he would not attempt to interrogate the evidence and factual background of the IEBC DRC case no matter how enticing it seemed, as that would be usurping the tribunal's authority.[vii] He backed this position relying on precedence that distinguished appeals from judicial reviews.[viii] He opined that his ambit in a judicial reveiw was only to determine whether the due process was followed in hearing the matter.[ix] Justice Ngaah refused to take up jurisdiction to hear the matter. Therefore, there was no substantive hearing on the interpretation and application of the Constitution in regard to the violation of Jimi Wanjigi's rights.

Aggrieved by this decision, Jimi Wanjigi appealed to the Court of Appeal. He pleaded that the High Court erred in refusing to clothe itself with jurisdiction.[x] The Court of Appeal agreed with him on this position. It found that judicial review went beyond looking at the procedural rectitude of a decision- a decision's legality, rationality, impartiality, reasonability and fulfilment of legitimate expectation could be reviewed by the Court.[xi] However, instead of referring the matter back to the High Court, they proceeded on to hear and determine it substantively. The issues as framed were interrogating whether the appellant had met the necessary prerequisites of qualifying to be a presidential candidate. The court found that the decisions of IEBC DRC not to clear Jimi Wanjigi's candidature did not violate his constitutional rights.[xii] The court therefore found his claims unmeritorious save for the extent of the jurisdiction of the Court in relation to judicial review applications. This led the applicant to appeal to the Supreme Court.

The appellant approached the court invoking the appellate jurisdiction in article 163(4)(a) challenging the application of Articles 10, 25, 38, 47, 50, 83, 88, 99, 137, 148 and 249 of the Constitution. He placed emphasis on article 38 on his political rights being violated by the decisions of the IEBC DRC and the subsequent judicial bodies.[xiii] The respondents were adamant that the issues canvassed in the Court of Appeal did not involve the application and interpretation of the Constitution thus the court lacked the jurisdiction to handle the matter.[xiv]

The Supreme Court concurred with the position of the respondents. Relying on previous precedence, the court reasoned that for a matter to be admissible, there ought to be contentions regarding substantive application and interpretation of the Constitution.[xv] These issues ought to have originated from the court of first instance and have been extensively debated upon.[xvi] The gravamen of the dispute did not involve the application and the interpretation of the said provision but rather a factual analysis of the eligibility of the appellant as a presidential candidate.[xvii] Mere mentions of constitutional provisions without in-depth analysis did not suffice to activate the Supreme Court's appelate jurisdiction.[xviii] Thus the respondents' preliminary objection was upheld.

In conclusion, the court set out four principles that a party should adhere two in order to successfully invoke this jurisdiction:

i)Not all judicial review matters can approach the Supreme Court claiming the appeal as of right jurisdiction;
ii)The party has to show the particulars of their case that involved substantive debate on the application and interpretation of the Constitution at both the High Court and the Court of Appeal;
iii)The party should prove that the two superior courts erred in granting or failing to grant judicial review remedies in light of constitutional principles;iv)The party is at liberty to approach the Court on appeal as provided for in Article 163(4)(b); the certification process applies.[xix]

The Supreme Court in failing to take up jurisdiction denied themselves the chance of shedding light on the issue regarding the education qualifications of Presidential candidate. If the Court had clothed itself with jurisdiction, it would have provided clarity and precedence on whether Regulation 47 of the Election Regulations Rules of 2017 is unconstitutional or not. This notwithstanding, the Court did show how the appellate jurisdiction (as of right) is a peculiar one that is not haphazardly impetrated.

References 

[i] Constitution of Kenya (2010), Article 163(3)(a) provides for the original jurisdiction to hear and determine presidential election petitions and 163(3)(b) provides for the appellate jurisdiction to hear appeals from the Court of Appeal or any other court or tribunal as prescribed by any legislation.

[ii] Wanjigi v Chebukati & 2 others, Petition 19 (E022) of 2022, Judgement of the Supreme Court on 17 February 2023, eKLR.

[iii] Constitution of Kenya (2010), Article 137(1)(d).

[iv] Constitution of Kenya (2010), Article 148(1).

[v] Constitution of Kenya (2010), Article 137(1)(b) read together with article 99(1)(b), Election Act Section 22(2) and Elections Regulations, Regulation 47(1).

[vi] Wanjigi v Chebukati & 2 others, 6 .

[vii] Wanjigi v Chebukati & 2 others, 34.

[viii] OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others, Civil Appeal No 28 of 2016, Judgement of the Court of Appeal,28 July 2017, eKLR. See also n R v Inland Revenue Commissioners ex-parte National Federation of Self-Employed and Small Businesses Ltd 1982(AC) 617 and Chief Constable of the North Wales Police v Evans (1982) 1 WLR 1155, 1160F.

[ix] Wanjigi v Chebukati & 2 others, 31 .

[x] Wanjigi v Chebukati & 2 others, Civil Appeal E404 of 2022, Judgement of the Court of Appeal, 29 July 2022, eKLR, 16.

[xi] Wanjigi v Chebukati & 2 others, 42.

[xii] Wanjigi v Chebukati & 2 others, 74.

[xiii] Constitution of Kenya, article 38(3)(c) gives every citizen the opportunity to vie for candidacy for any public office.

[xiv] Wanjigi v Chebukati & 2 others, 38 (At the Supreme Court).

[xv] See, Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, Petition No 3 of 2012, Ruling of the Supreme Court on 4 October 2012, eKLR.

[xvi] Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney- General & 2 others, Petition 45 of 2018, Ruling of the Supreme Court on17 March 2021, eKLR.

[xvii] Wanjigi v Chebukati & 2 others, 63.

[xviii] Wanjigi v Chebukati & 2 others, 65.

[xix] Wanjigi v Chebukati & 2 others, 54.