Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2020] Eklr

The court held that an appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the court under the provisions of Article 163(4)(a) of the Constitution. The question whether sections 26 and 55 of ACECA violated the right to property under Article 40 of the Constitution was addressed at paragraphs 74 and 79 of the impugned Court of Appeal judgment. Whereas, in the originating summons filed by the Respondent at the High Court, no specific reference was made to the need to interpret and apply the Constitution, the Court of Appeal dismissed the constitutional question regarding sections 26 and 55 of ACECA without taking any evidence and addressing the factual issues raised therein. In the entire analysis of the evidence before the High Court and in applying the law to that evidence, it did not make any reference to the Constitution nor did it even attempt to interpret or apply sections 26 and 55 of ACECA in the context of their constitutionality or otherwise. The High Court did not make any orders regarding the constitutionality or otherwise of the exercise of forfeiture of unexplained assets under those Sections. The appellant, in crafting the issue of whether the High Court misdirected itself as to the law provided under Articles 40 and 50 of the Constitution and section 55 of the ACECA as to the threshold on forfeiture of property, was focused more on the threshold of forfeiture of property than on the specific constitutional questions revolving around interpretation or application of Articles 40 and 50. Where the interpretation or application of the Constitution had only but a limited bearing on the merits of the main cause, then the jurisdiction of the court could not be properly invoked. The mere reference to the rich generality of constitutional principle as the Court of Appeal did in the instant case, was not a sufficient ground to invoke article 163(4)(a) of the Constitution. Reference to Articles 40 and 50 of the Constitution were introduced by the Appellant at the Court of Appeal and even then, peripherally so. The Court of Appeal thereafter rendered itself in passing only, the bulk of its judgment was saved to an evaluation of the evidence on record in the context of sections 26 and 55 of ACECA and not the Constitution per se. Preliminary objection was allowed; appeal struck out for want of jurisdiction under article 163(4)(a) of the Constitution; the Respondent to have the costs.