Jurisdiction
Jurisdiction is the power a court must have before it may do anything at all. Kenyan courts treat it as the first question in every matter: whether the Constitution or a statute has given the court power, whether the claim falls inside the limits of that power, and whether the right door has been used — appeal, review, or a fresh suit.
How the courts frame it
The question is answered in two steps. First, is there a provision — in the Constitution or in a statute — that confers the power? Second, does this particular dispute fall within the terms of that provision? A court that answers either question wrongly has no power to make one more step, and any order it makes is a nullity, however carefully the merits were argued.
Because the point is jurisdictional, it is never too late to take it. It may be raised for the first time on appeal, by a party who never pleaded it, and the court may raise it on its own motion — since consent cannot confer a power the law withholds.
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 — Nyarangi, JA — read the brief
Sub-issues
Jurisdiction is not one question but a family of them. Each sub-issue carries its own line of authority, gathered from the judgments tagged to it.
214 Supreme Court decisions. Article 163(3)(b)(ii) confers an appeal only where Parliament has prescribed one.
Article 165(3)(a) gives the High Court unlimited original jurisdiction — but it cannot borrow the specialist courts' remit.
312 judgments. The ELRC's exclusive remit under Article 162(2)(a) and the test for a dispute arising out of employment.
208 judgments. Article 162(2)(b), and whether a judge of the High Court may sit in the ELC at all.
A point of jurisdiction may be taken at any stage, by any party, and the court may raise it on its own motion.
Choosing the wrong door: where the remedy is an appeal, the High Court will not review the same decision.
Leading cases on jurisdiction
Ranked by how often each has been relied on in later judgments. The first is the newest statement of the principle; the second is the principle itself.
No appeal lies from the Small Claims Court to the Supreme Court. Article 163(3)(b)(ii) requires national legislation to prescribe that jurisdiction, and the Small Claims Court Act makes the High Court the final appellate court instead.
Jurisdiction flows from the Constitution or from legislation, or both — never from the consent of the parties. A court cannot arrogate to itself a jurisdiction greater than the law confers, and where it acts without jurisdiction its proceedings are a nullity.
The Court of Appeal's classic statement on procedure: jurisdiction is everything, and a court must first satisfy itself that it has it — because without it every step taken afterwards is taken in vain.
The Court confirmed that its jurisdiction over a presidential petition is original and exclusive, and set the outer limit of it: the Court does not sit as an appeal on the electoral commission's findings of fact.
The advisory-opinion jurisdiction is not an appeal by another name. A reference must raise a question of law arising out of the exercise of a constitutional function by a state organ.
The ELRC and the ELC must be constituted from judges specially qualified to sit in them: a judge of the High Court cannot exercise the specialist courts' jurisdiction, and vice versa.
Frequently asked questions
- Can jurisdiction be raised for the first time on appeal?
- Yes. Jurisdiction goes to the court's power rather than to the parties' pleadings, so it may be taken at any stage — even by the court on its own motion. Leave is not required to argue it, and a party cannot cure the defect by consent or by taking a fresh step in the proceedings.
- What happens to a judgment delivered without jurisdiction?
- It is treated as a nullity. The court's orders cannot stand, and the usual remedy is to set the proceedings aside and, where the dispute is within another court's remit, to remit the matter to the correct court. Costs follow the event rather than the mistake.
- How do the specialist courts fit in?
- The ELRC, the ELC and the High Court each hold a distinct remit. Following R v Karisa Chengo, the specialist courts must be constituted from judges specially qualified for them — so a judge of the High Court cannot sit in the ELRC, and the High Court cannot exercise the ELRC's jurisdiction merely because a claim is pleaded as a constitutional one.
- Where should I start reading?
- Read Samuel Kamau Macharia for the principle that jurisdiction flows from the Constitution or legislation, then Lillian S for the procedure a court follows once the point is raised. After that, check the citator for how the authority you intend to rely on has actually been treated.
Where to take this next
The topic page is a starting point. Each of these views opens the same body of authority from a different direction.
How the volume of jurisdictional challenges has moved across the courts since 2011.
Followed, distinguished or departed from — with the paragraph each treatment rests on.
1,204 briefs, filterable by court, judge, outcome and date.