How to Challenge Court and Tribunal Orders, Judgments, and Decrees in Kenya

In Kenya, the judicial system is designed to ensure justice, fairness, and the rule of law. However, there are instances where a party to a case may feel aggrieved by a court or tribunal’s order, judgment, or decree. In such cases, the law provides mechanisms for challenging these decisions. This article offers a detailed guide on challenging court and tribunal orders, judgments, and decrees in Kenya.

Legal Framework for Challenging Court and Tribunal Decisions

1.1 The Constitution of Kenya, 2010

The Constitution is the supreme law of the land and provides the foundation for challenging court and tribunal decisions. Key provisions include:

• Article 48: Mandates the state to ensure that all persons have access to justice, and there shall not be impeded access to justice, including fees.
• Article 50(1): Guarantees the right to a fair hearing, which includes the right to have any decision affecting one’s rights reviewed by another independent and impartial higher court or body.
• Article 159(2)(c): Encourages alternative dispute resolution mechanisms, including arbitration, reconciliation, and mediation.
• Article 163(4): Establishes the appellate jurisdiction of the Supreme Court in matters involving constitutional interpretation or issues of general public importance.
• Article 164(3): Establishes the Court of Appeal, which hears appeals from the High Court and other subordinate courts.
• Article 165(3): Grants the High Court jurisdiction to hear appeals from subordinate courts and tribunals.

1.2 Key Statutes Governing Courts and Tribunals

Several statutes establish Courts and tribunals and outline their appellate pathways and include but are not limited to:

• Employment and Labour Relations Court Act, 2011: Establishes the Employment and Labour Relations Court (ELRC) with the exclusive original and appellate jurisdiction to hear and determine all employment and labour relations disputes as elaborated in Section 12 of the Act. They include cases relating to unfair dismissal, employment contracts, and labor disputes
• Environment and Land Court Act, 2011: Establishes the Environment and Land Court (ELC)  with original and appellate jurisdiction to hear and determine all disputes relating to environment and land. These are Land disputes (ownership and management), environmental conservation cases, and disputes over natural resources.
• Public Procurement and Asset Disposal Act, 2015: Establishes the Public Procurement Administrative Review Board (PPARB), which handles disputes relating to public procurement (Section 175 of the Public Procurement and Asset Disposal Act, 2015). It resolves disputes between bidders and public entities over procurement processes.
• Tax Appeals Tribunal Act, 2013: Establishes the Tax Appeals Tribunal (TAT) and handles disputes relating to taxation (Section 21 of the Tax Appeals Tribunal Act, 2013). TAT resolves disputes between taxpayers and the Kenya Revenue Authority (KRA).
• Competition Act, 2010: Establishes the Competition Tribunal. The Tribunal handles disputes relating to competition and antitrust matters (Section 42 of the Competition Act, 2010) and resolves disputes involving anti-competitive practices, mergers, and consumer protection.

Grounds for Challenging Court and Tribunal Decisions

1. Errors of Law – An error of law occurs when a court or tribunal misinterprets or misapplies the law. This is common ground for appeal. For example, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal emphasized that an error of law is a valid ground for challenging a court’s decision.

2. Errors of Fact – An error of fact occurs when a court or tribunal makes a finding of fact that is not supported by the evidence.

3. Lack of Jurisdiction – A court or tribunal must have jurisdiction to hear and determine a case. If it lacks jurisdiction, its decision can be challenged. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court held that jurisdiction is granted by a constitution or a statute and a threshold issue and that a court cannot assume jurisdiction where it has none.

4. Procedural Irregularities – Procedural irregularities, such as failure to follow due process, can be grounds for challenging a court or tribunal’s decision. In Republic v Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati [2008] eKLR, the court emphasized that procedural fairness is a fundamental aspect of justice.

5. Bias or Conflict of Interest – A decision can be challenged if there is evidence of bias or conflict of interest on the part of the judge or tribunal member. In Republic v Judicial Service Commission Ex Parte Pareno [2004] eKLR, the court held that bias, whether actual or perceived, undermines the integrity of the judicial process.

6.  New Evidence – In some cases, new evidence that was not available at the time of the trial may emerge. This can be a ground for challenging a decision, particularly if the new evidence is likely to significantly impact the outcome of the case.

Procedures/ Mechanisms for Challenging Court and Tribunal Decisions

1. Filing an Appeal – An appeal is the most common method of challenging a court or tribunal’s decision. The procedure for filing an appeal varies depending on the court or tribunal from which the appeal is being made.
   • Appeals from Subordinate Courts to the High Court
     • Every appeal from a subordinate court to the High Court shall be filed within thirty days (30) from the date of the decree or order appealed against, as provided under Section 79G of the Civil Procedure Act.
     • Prepare and file a Memorandum of Appeal outlining the grounds of appeal.
     • Serve the Memorandum of Appeal on the respondent.
     • Obtain a certified copy of the proceedings and judgment from the lower court.
     • File the Record of Appeal, which includes the Memorandum of Appeal, the certified copy of the proceedings, and any other relevant documents.
     • A further appeal from the High Court’s decision may lie to the Court of Appeal, but only on matters of law (Section 72 of the Civil Procedure Act).
     • In exceptional cases, a second appeal may be taken to the Supreme Court, provided that the matter raises an issue of general public importance (Article 163(4) of the Constitution).
   • Appeals from the High Court to the Court of Appeal
     • File a Notice of Appeal within 14 days of the High Court’s decision, as provided under Section 7 of the Appellate Jurisdiction Act.
     • Prepare and file a Memorandum of Appeal, outlining the grounds of appeal.
     • Serve the Notice of Appeal and Memorandum of Appeal on the respondent.
     • Obtain a certified copy of the proceedings and judgment from the High Court.
     • File the Record of Appeal, which includes the Memorandum of Appeal, the certified copy of the proceedings, and any other relevant documents.
   • Appeals to the Supreme Court
     • Appeals to the Supreme Court are limited to matters involving constitutional interpretation or issues of general public importance, as provided under Article 163(4) of the Constitution.
     • File a Notice of Appeal within 14 days of the Court of Appeal’s decision.
     • Obtain certification from the Court of Appeal or the Supreme Court if the appeal involves a matter of general public importance.
     • Prepare and file a Memorandum of Appeal outlining the constitutional issues or matters of public importance.
     • Serve the Notice of Appeal and Memorandum of Appeal on the respondent.
   • Appeals from Tribunals – Tribunals are established under various statutes and have different appeal mechanisms.  Below are some common tribunals and their appellate routes:
     • Business Premises Rent Tribunal (BPRT) – Appeals lie to the High Court under Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
     • Competition Tribunal – Appeals lie to the High Court under Section 42 of the Competition Act, 2010.
     • Public Procurement Administrative Review Board (PPARB) – Appeals lie to the High Court under Section 175 of the Public Procurement and Asset Disposal Act, 2015.
     • Tax Appeals Tribunal – Appeals lie to the High Court under Section 21 of the Tax Appeals Tribunal Act, 2013.
     • Communications and Multimedia Appeals Tribunal (CMAT): Appeals lie to the High Court under Section 102 of the Kenya Information and Communications Act, 1998.
2. Application for Revision – A higher court can revise a lower court’s decision to correct errors of law or jurisdiction (Section 81 of the Civil Procedure Act).
3. Application for Review – A court or tribunal can review its own decision based on new evidence, errors on the face of the record, or other sufficient reasons (Order 45 of the Civil Procedure Rules).
4. Judicial Review – Judicial review is a powerful tool for challenging administrative decisions, including those made by tribunals. Governed by Article 47 of the Constitution, the Fair Administrative Action Act, 2015, and Order 53 of the Civil Procedure Rules, judicial review remedies include:
   • Certiorari – Quashing an illegal or irregular decision.
   • Mandamus – Compelling a public authority to perform a legal duty.
   • Prohibition – Preventing a public authority from acting unlawfully.

   The application must be filed in the High Court within six months of the decision (as per Section 9 of the Fair Administrative Action Act).

5. Constitutional Petitions – Article 165(3) of the Constitution vests the High Court with jurisdiction to hear and determine constitutional petitions. A decision that infringes on fundamental rights and freedoms can be challenged through a petition, supported by affidavits and legal arguments.
6. Stay of Execution pending appeal – To prevent an adverse judgment or decree enforcement, a party may apply for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The applicant must demonstrate:
   • Substantial loss if the order is not granted.
   • The appeal is filed without unreasonable delay.
   • Willingness to furnish security for due performance.

Conclusion

Understanding the jurisdiction of courts and tribunals is essential for determining where to file a case and how to challenge a decision. Each court and tribunal has a specific mandate, and aggrieved parties must follow the appropriate appellate pathways to seek redress. By understanding the legal framework, grounds for challenge, and procedural steps, individuals and organizations can effectively challenge decisions that they believe are unjust, unfair, or unlawful. The Kenyan judicial system, guided by the Constitution and various statutes, is designed to uphold the rule of law and ensure that justice is accessible to all.

For personalized legal assistance, contact Njaga & Co Advocates. Our team is ready to provide world-class legal services tailored to your needs. Contact Us, and let us help you navigate the complexities of the legal system and achieve the justice you deserve.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.