THE SUPREME COURT OF KENYA: IT'S JURISDICTION, AUTHORITY AND LANDMARK RULINGS

The Supreme Court of Kenya is the highest court in Kenya. It is established under Article 163 of the new Kenyan Constitution 2010. As the highest court in the nation, its decisions are binding and set precedent on all other courts in the country. It consist of the Chief Justice; who is the president of the court, the Deputy Chief Justice; who deputises for the Chief Justice and the vice-president of the court and five other judges. 

THE JURISDICTION, AUTHORITY, AND LANDMARK RULINGS

        1. DISPUTES RELATION TO PRESIDENTIAL ELECTIONS

The Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of president arising under Article 140 of the Constitution. This means only the Supreme Court can handle petitions challenging the validity of a presidential election. In the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, was a landmark decision by the Supreme Court of Kenya that nullified the presidential results of the 2017 General Elections in Kenya. The petition was brought forward by Raila Odinga and Kalonzo Musyoka, the National Super Alliance (NASA) candidates, challenging the legitimacy of Kenya's August 8, 2017, presidential election. They claimed that the Independent Electoral and Boundaries Commission (IEBC) and its chairperson, Wafula Chebukati, as well as Uhuru Kenyatta, the incumbent president and Jubilee Party candidate, committed irregularities during the election. They sought to overturn the election results and demanded a new election be conducted. The Supreme Court nullified the election, citing IEBC’s failure to comply with constitutional standards. The court ruled that elections are a process, not just results, and ordered a fresh election within 60 days. 

The court upheld that the petitioner bears the initial burden of proof to demonstrate electoral irregularities and non-compliance with the law. However, once the petitioner establishes prima facie evidence of irregularities, the burden shifts to the IEBC to prove that the election was conducted in accordance with the Constitution and electoral laws. The court also emphasized that in cases involving numerical data, the burden of proof must be beyond a balance of probabilities but not as high as beyond reasonable doubt. The request for scrutiny must be made with sufficient reasons. 

        2. APPEALS FROM THE COURT OF APPEAL 

The Supreme Court of Kenya has appellate jurisdiction to hear and determine appeals from the Court of Appeal. Appeals can only be as a matter of right, where the case involves interpretation or application of the Constitution or a matter certified by the Supreme Court or the Court of Appeal as one that involves a matter of general public importance. The Supreme Court may review a certification by the Court of Appeal and either affirm, vary or overturn it. You must identify how it affects the General Public Importance or matter of rights, but it's not for you to determine if it GPI, it's for the Court of Appeal.

Not every decision of the Court of Appeal is appealable. You can't challenge the decision of the Court of Appeal until the Court gives reasons for their judgement. You must be one of the original parties for you to be able to appeal to the Supreme Court.

        3.  ADVISORY OPINION JURISDICTION 

The Supreme Court may give an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government. Advisory opinions are issues in the absence of a case or controversy. An opinion of the Supreme Court is binding and one must have sought the opinion of the Attorney General before. 

        4. REMOVAL OF A JUDGE 

A Judge may be recommended by the Tribunal for removal from Court. In Chitembwe v The Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) [2023] KESC 114 (KLR), the tribunal investigated six allegations against Justice Chitembwe, including claims of impropriety and misconduct. After thorough examination, the tribunal found sufficient evidence supporting these allegations and recommended his removal from office. Justice Chitembwe appealed the tribunal's decision to the Supreme Court, challenging the findings and the admissibility of the evidence presented against him. However, in December 2023, the Supreme Court dismissed his appeal, affirming the tribunal's recommendation for his removal.

         5. THE VALIDITY OF A DECLARATION OF STATE OF EMERGENCY 

Since a state of emergency has never been declared by the President, there is limited jurisprudence on its validity in the Supreme Court. As a result, there is not much to analyze on this issue, as it remains largely theoretical.





Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 REFERENCES

The Constitution of Kenya 2010

Kenya Law

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