Jurisdictional Limits at the Apex: Supreme Court Strikes Out Appeal Challenging Review Ruling While Seeking to Re-litigate Substantive Judgment
Ashmi Investment Limited v Riakina Limited & another KESC 30 (KLR) (28 June 2024), Supreme Court of Kenya (MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ).
This article examines the Supreme Court of Kenya’s judgment in Ashmi Investment Limited v Riakina Limited & another, which primarily addressed the court’s jurisdiction when an appellant seeks to challenge a Court of Appeal ruling on review while effectively attempting to appeal the underlying substantive judgment. The decision underscores the critical importance of procedural accuracy and adherence to jurisdictional boundaries in appellate litigation.
Brief Facts of the Case
The dispute originated from a double allocation of unsurveyed industrial plots off Mombasa Road by the Commissioner of Lands in 1998 to both Ashmi Investment Limited (the Appellant) and Riakina Limited (the 1st Respondent). The Environment and Land Court (ELC) found that the 1st Respondent was the bona fide allottee, having accepted the offer and paid requisite fees earlier. The ELC also found that the Appellant processed titles for LR Nos. 29955 and 29957 while the suit was pending, which the court deemed intended to defeat the 1st Respondent’s rights and counterclaim. Consequently, the ELC dismissed the Appellant’s suit and allowed the 1st Respondent’s counterclaim, cancelling the Appellant’s survey deed plan and resultant title to the suit properties.
Both the 2nd Respondent (National Land Commission) and the Appellant filed applications for review of the ELC judgment, which were dismissed by the ELC. The Appellant then appealed the ELC judgment to the Court of Appeal. The Court of Appeal affirmed the ELC’s findings, holding that the 1st Respondent was first in time regarding payment and entitlement to allocation, and that the Appellant’s processing of title during the suit was unlawful and fraudulent.
Dissatisfied with the Court of Appeal’s judgment, the Appellant filed an application with the Court of Appeal seeking to review and set aside that judgment. The Court of Appeal dismissed this application on April 14, 2023, finding no errors of law or sufficient reason for review.
The Appellant then moved to the Supreme Court, challenging the Court of Appeal’s ruling dated April 14, 2023, which dismissed the review application. The appeal invoked the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution, which allows appeals as of right in cases involving the interpretation or application of the Constitution. The Appellant raised seven grounds of appeal, primarily arguing that the Court of Appeal erred by upholding the cancellation of their title and findings of fraud, particularly in relation to Article 40 of the Constitution on the right to property and the doctrine of lis pendens.
The 1st Respondent raised a preliminary objection challenging the Supreme Court’s jurisdiction. In a prior ruling on August 4, 2023, the Supreme Court partly allowed the objection and restricted the appeal to two issues: whether the appellant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and whether the Court of Appeal misapplied the doctrine of lis pendens thereby denying the applicant a right to property.
Key Legal Issues
The central issues before the Supreme Court in its final judgment were:
- Whether the Supreme Court’s previous ruling on jurisdiction foreclosed further interrogation of whether its jurisdiction was validly invoked.
- Whether the Supreme Court had jurisdiction to determine an appeal against the substantive judgment of the Court of Appeal, as opposed to the issues specifically framed by the Supreme Court based on the appeal from the review ruling.
- The implications of a litigant choosing to pursue review of a decision at the Court of Appeal before attempting to appeal to the Supreme Court.
Judgment Analysis
The Supreme Court began by reaffirming its practice of satisfying itself of its jurisdiction in any appeal brought under Article 163(4)(a), regardless of whether an objection is raised.
Crucially, the Court addressed whether its earlier ruling on jurisdiction precluded further examination. Citing its recent decision in Kampala International University v Housing Finance Company Limited KESC 11 (KLR), the Supreme Court held that its prior ruling, which had restricted the appeal to specific issues and granted the Appellant the “benefit of the doubt” to ventilate their case under Article 163(4)(a), did not foreclose future interrogation of whether the court’s jurisdiction was validly invoked, either by the court suo motu or by a party. The prior ruling merely preserved the substratum of the appeal by finding it arguable.
Upon reviewing the Appellant’s Petition of Appeal and submissions, the Court observed a fundamental disconnect: while the Notice of Appeal explicitly challenged the Court of Appeal’s ruling dismissing the review application (dated April 14, 2023), the substance of the Appellant’s arguments in the Supreme Court focused on the merits of the Court of Appeal’s substantive judgment (dated November 19, 2021).
The Court emphatically stated that filing a Notice of Appeal is a jurisdictional pre-requisite. Since the Notice of Appeal was only against the review ruling, the Supreme Court’s jurisdiction was limited to issues arising from that ruling. The Appellant had failed to file a Notice of Appeal against the substantive judgment. The Court found that the Appellant’s attempt to argue against the substantive judgment amounted to the appeal having transmuted from one against the review ruling to one against the judgment.
Referring to its position in University of Eldoret & Another v Hosea Sitienei & 3 others eKLR, the Supreme Court rejected this attempt, describing it as ingenious but one that must nevertheless be stifled at the outset. The Court reiterated its prior holding in University of Eldoret & Another v Hosea Sitienei & 3 Others, SC Application No 8 of 2020, that where a litigant has more than one option to pursue following a Court of Appeal decision (e.g., review before the same court or appeal to the Supreme Court), they must settle on one. Once a party chooses one path, such as review, the other option (appealing the original decision) is generally no longer available as if the first option was never exercised. Allowing parties to pursue a failed review and then switch to appealing the original decision would lead to protracted litigation and defeat the whole essence of the finality of the litigation process.
The Court concluded that it was not seized of the requisite jurisdiction because the appeal, as presented, was effectively against the substantive judgment, not a constitutional argument arising from the parameters of review of a Court of Appeal judgment. The Appellant’s submissions were incongruent with the Notice of Appeal.
Although the Appellant framed issues related to Article 40 and lis pendens as constitutional issues arising under Article 163(4)(a), the Supreme Court found that these were argued as if appealing the substantive judgment, not within the limited scope of challenging the Court of Appeal’s decision to deny review. The Court noted that the parameters of review of a judgment by the Court of Appeal are well settled, and the Appellant failed to articulate a constitutional argument specifically arising from those review parameters. The Court did not, therefore, delve into the substantive arguments regarding bona fide ownership under Article 40 or the application of lis pendens in this judgment.
Regarding costs, the Court cited Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others eKLR, affirming that costs generally follow the event and compensate the successful party. However, taking into account the history of the case across three superior courts and the non-participation of the respondents in the Supreme Court proceedings, the Court ordered no costs.
In the end, the Supreme Court struck out the Petition of Appeal for want of jurisdiction.
Implications of the Decision
This judgment carries several significant implications for litigants and legal practice in Kenya:
- Strict Adherence to Procedure: The decision is a stark reminder to legal practitioners of the paramount importance of procedural precision, particularly concerning the filing of Notices of Appeal. Appealing from a review ruling requires the Notice of Appeal to specifically identify that ruling. An appeal intended to challenge the substantive judgment must similarly be founded on a Notice of Appeal directed at that judgment. Mixing the two or using a Notice of Appeal for a review ruling to mount an attack on the underlying judgment will likely result in the appeal being struck out for want of jurisdiction.
- Strategic Choice Between Review and Appeal: The ruling reinforces the principle that choosing between seeking review of a Court of Appeal decision (typically under specific, limited grounds) and pursuing an appeal to the Supreme Court is a critical strategic decision that, once made, can limit future options. A litigant cannot generally pursue a failed review and then pivot to appeal the original decision as if the review option was never exercised.
- Scope of Appeals from Review Rulings: The judgment clarifies that appeals to the Supreme Court purportedly arising from Court of Appeal review rulings under Article 163(4)(a) must articulate constitutional issues that arise specifically from the parameters of review applied by the Court of Appeal, not merely rehash the grounds of appeal against the original judgment. This sets a high bar for such appeals, emphasizing that the Supreme Court’s jurisdiction is limited to constitutional interpretation or application.
- Supreme Court’s Commitment to Jurisdictional Oversight: The Court’s willingness to re-interrogate its jurisdiction suo motu, even after an initial ruling addressing a preliminary objection, signals its commitment to ensuring its limited jurisdiction is not exceeded. This serves as a caution to litigants that the Court will scrutinize the true nature of the appeal beyond the initial framing of issues.
- Finality of Litigation: By rejecting the Appellant’s approach, the Court champions the principle of finality in litigation, discouraging strategies that protract disputes by serially challenging decisions through different procedural avenues.
In essence, Ashmi Investment Limited v Riakina Limited & another serves as a crucial precedent emphasizing that access to the Supreme Court through Article 163(4)(a) following a Court of Appeal review application is narrow and contingent on strict compliance with procedural requirements and the framing of a genuine constitutional issue rooted in the review process itself, rather than a re-litigation of the underlying merits of the substantive judgment.