Propositions of law
The holdings that decide cases, lifted out of 99,603 judgments and tied to the paragraph that establishes each one. Binding propositions come from a court above you; persuasive ones may still be worth citing, with care.
Most cited binding propositions
Each proposition is one sentence a court can be asked to apply, with the case and paragraph that establishes it. The count beside each row is how often later judgments have relied on it. Only propositions stated by the court are extracted — never those merely urged in submissions.
The Supreme Court's appellate jurisdiction under Article 163(3)(b)(ii) arises only where Parliament has prescribed it. The Small Claims Court Act instead makes the High Court the final appellate court, so no appeal lies to the Supreme Court however substantial the grievance.
Jurisdiction is everything. Without it a court has no power to make one more step, and the question must be settled before the merits are argued — a party cannot waive it, and the bench cannot assume it.
Where an accused has been in custody pending trial, that period must be taken into account when sentence is passed. A court that passes sentence without crediting remand time errs, and the error is correctable.
After a lawful sentence the court has no further power over the matter. A fresh application to the same court is incompetent; the remedy lies in review by a higher court, or in appeal.
Leave to appeal to the Supreme Court is not a matter of course. The intending appellant must identify a point of law of general public importance, and satisfy the Court that it is a point the Court ought to determine.
A court's jurisdiction is a matter of law. Parties cannot confer it by agreement, acquiescence or the silence of the bench, and a court cannot assume it because the dispute is important.
A first appeal is a re-hearing on the record. The appellate court must weigh the evidence itself and reach its own conclusion, not merely ask whether the trial court could have reached the finding it did.
Persuasive only — handle with care
A proposition is persuasive rather than binding when it comes from a court of coordinate jurisdiction, or from a decision the higher courts have not adopted. Cite it as persuasive, and say so.
Probation is not a licence to dismiss at will: the employer must show a reason that a fair employer would act on. Persuasive only in the High Court, which is of coordinate jurisdiction with the ELRC.
Where a citizen litigates to enforce the Constitution rather than for personal gain, the ordinary rule that costs follow the event may be departed from. Persuasive in later High Court matters, not binding.
Propositions by court
Where the propositions come from, and how much of each court's output carries one.
| Court | Extracted | Binding | Persuasive | Most cited proposition |
|---|---|---|---|---|
| Supreme Court | 1,284 | 1,102 | 182 | Jurisdiction flows from the Constitution or legislation |
| Court of Appeal | 4,662 | 4,010 | 652 | A court must satisfy itself of jurisdiction before the merits |
| High Court | 68,204 | 61,388 | 6,816 | Time served in remand must count towards the sentence |
| Employment and Labour Relations Court | 11,240 | 9,914 | 1,326 | Reinstatement is the primary remedy under section 49(3) |
| Environment and Land Court | 7,918 | 7,102 | 816 | Adverse possession needs twelve years of open, peaceful possession |
| All courts | 93,308 | 83,516 | 9,792 | — |
A proposition is counted as binding for the courts beneath it: everything the Supreme Court holds binds every court, a Court of Appeal holding binds the High Court and subordinate courts, and a High Court holding binds magistrates and tribunals. The same proposition can therefore be binding in one forum and persuasive in another.
Binding or persuasive?
Precedent in one page: what binds, what merely persuades, and what to say when the authority you are handed is neither.
- What makes a proposition binding?
- The rank of the court that laid it down, not the force of its language. A holding of the Supreme Court binds every court in Kenya. A holding of the Court of Appeal binds the High Court, magistrates and tribunals. A holding of the High Court binds magistrates and tribunals, but in another High Court judge's court it is persuasive — followed for consistency, not because it must be.
- What is the difference between a ratio and an obiter dictum?
- The ratio decidendi is the reason the case was decided: remove it and the result changes. Anything else the court says — a comment on a statute not in issue, an answer to an argument that did not need deciding — is obiter and persuasive at most, whatever the rank of the court. CaseHub labels each proposition, and you should read the paragraph before relying on the label.
- Can a High Court decision be binding on another High Court?
- No, strictly. Where the High Court has decided a point consistently, a later judge will normally follow it rather than create a conflict, but that is practice, not precedent. If your opponent's authority is a coordinate decision, say so — and if you are the one citing it, cite it as persuasive.
- How do I deal with a persuasive authority my opponent relies on?
- Three ways. Show that it has been distinguished or not followed by a court that does bind you. Show that the statute or rule has changed since it was decided. Or accept the reasoning and confine it to its facts — the argument usually turns on the facts, not the principle.
- How are propositions extracted?
- Each judgment is read once and the propositions it establishes are recorded with the paragraph they come from, the subject, and the courts they bind. Propositions stated only in a party's submissions are not extracted: the words must be the court's own.
- Do I still need to read the judgment?
- Yes. A proposition is a sentence taken out of a judgment. Before you put it in a submission, read the paragraph it comes from — and the two paragraphs around it — and check the citator for later treatment. The brief and the raw judgment are both one click away.
Build the submission from propositions, not from summaries.
Save the propositions that matter, export them with full citations in the Kenya Law format, and check each one for later treatment before you rely on it.