Opinion: Supreme Court will do well to revisit rulings on jurisdiction

Jurisdiction is a central tenet of the principled and rational exercise of power in liberal systems of governance. It ensures that powers accorded to individuals and institutions are exercised subject to and within the limits of the authorising framework.

In the context of institutional powers authorised by the Constitution of Kenya, 2010, jurisdiction determines the legality and propriety of conduct, as well as the extent to which institutional actors can legitimately act. It also supplies a basis for invalidation of action that exceeds the bounds of the authorised conduct.

As a constitutional function, judicial authority is one of the public powers strictly regulated by jurisdictional rules specifying the types of disputes with which various courts are to be concerned. Yet, recent decisions of the Supreme Court of Kenya indicate a worrying tendency towards jurisdictional overreach in the sense that the Court is asserting its capacity to consider issues beyond its remit.

Specifically, there have been cases where the Supreme Court invoked its jurisdiction to consider and determine matters that neither the Constitution nor the Supreme Court Act envisage.

Before proceeding to critique this troubling trend, it is useful to briefly outline the sources of authority from which the jurisdiction of the Supreme Court flows. Two key provisions of the Constitution, namely Article 163(4)(a) and 163(4)(b), regulate the jurisdiction of the Supreme Court. A plain reading of these provisions indicates that its appellate jurisdiction can be triggered only in cases ‘involving the interpretation or application’ of the Constitution and cases certified as implicating ‘a matter of general public importance’.

Yet, the Supreme Court has in recent days been called upon to consider aspects emanating from family disputes that neither involve the interpretation and application of the Constitution nor raise issues of public importance.

What’s more, there have been conflicting rulings in which the Court has rendered contradictory decisions in similar fact cases. On the one hand, it has entertained family disputes and on the hand has declared itself lacking jurisdiction in such matters. Two cases, arising from family disputes but eliciting divergent approaches from the Court, can be used to illustrate this conflicted view of jurisdiction and its legal implications.

In the first case concerning a family dispute over the Sh17 billion estate of the late Mbiyu Koinange, the Supreme Court considered an application by the parties. It subsequently issued an order suspending the ‘proceedings in the High Court over the succession case number 527 of 1981’ pending the hearing and disposal of the application by the Supreme Court.

While the rationale of this ruling may on first glance seem reasonable as it sought to preserve the estate from wastage in the course of litigation, it is not supported by any constitutional or statutory authority. Nor is there any legal precedent on which it can find a legal basis.

The second case concerned a post-divorce alimony dispute in which Pamela Ann Walker Munro claimed Sh9.8 million from her former spouse arising from the unpaid maintenance that was ordered by the Court of Appeal in 2012. Here, the Supreme Court held that it did not have jurisdiction: ‘This appeal has nothing or little to do with constitutional interpretation.

This is a family issue which revolves around alimony.’ The most important takeaway, at least for present purposes, from the Koinange and Munro decisions of the Supreme Court is how diametrically opposed they are in their reasoning. One may even think that they are decisions of two different courts. This poses legal and practical problems that have crucial implications for the work of the Supreme Court, from which no appeal lies.

Two problematic issues that will likely arise from such conflicting judicial approaches are: (i) forum shopping and (ii) legal uncertainty. Now that the Koinange ruling provides a basis for invoking the Supreme Court’s jurisdiction to suspend subordinate court proceedings, there will be increased resort to similar tactics to stall or prolong litigation, making it unnecessarily costly.

The law will thus disproportionately favour the well-heeled party with resources to file multiple applications in superior courts shopping for the forum that best favours their claim.

Even more worrying is the legal uncertainty that litigants and their counsel are now faced with. It undermines established legal precedent concerning jurisdiction by introducing a dubious portal through which law can be bent for divergent decisions to emerge from similar fact cases. The Supreme Court would do well to revisit its decisions on jurisdiction with a view to return to a principled understanding of the concept of jurisdiction on which so much depends.