Victor Muatine

The Supreme Court just changed the Court of Appeal rules. This is important in the drafting of pleadings In Bloggers Association of Kenya (BAKE) & 3 others v Director of Public Prosecutions & 3 others, the Supreme Court of Kenya definitively addressed two fundamental questions of appellate practice: when the apex court may depart from its own precedents, and whether an interested party can mount an appeal in its own right. The ruling arose from an application by the Law Society of Kenya (LSK), which sought to challenge provisions of the Computer Misuse and Cybercrimes Act. Having been joined as an interested party in the High Court in 2018, the LSK asked the Supreme Court either to depart from its earlier decision in Mbaazi Avenue Residents’ Association v Metricon Home Nairobi Company Ltd—which bars interested parties from appealing—or to waive that restriction in its favor. A five-judge bench comprising Deputy Chief Justice Philomena Mwilu and Supreme Court Judges Smokin Wanjala, Isaac Lenaola, William Ouko, and Mohammed Warsame dismissed the application, reaffirming the high bar for departing from precedent and settling the procedural boundaries governing non-principal litigants. ​Addressing the standard for departing from its own decisions, the Court clarified the boundary between review proceedings and requests to overrule precedent. While the narrow review grounds under Section 21A of the Supreme Court Act apply to judgments obtained through fraud, lack of jurisdiction, or repealed law, a plea to overturn precedent is governed exclusively by the principles articulated in Jasbir Singh Rai v Tarlochan Singh Rai Estate. The Court confirmed that a party seeking departure must file a formal application served on all respondents, but emphasized that departure remains an extraordinary measure. The Court may choose between its own conflicting decisions or set aside a ruling delivered per incuriam, but it will never depart from precedent merely because its current bench doubts the correctness of the earlier decision or might reach a different conclusion today. Because Mbaazi was grounded in a consistent line of jurisprudence extending from Mumo Matemu through Muruatetu and Macharia, it was not decided per incuriam, and the challenge against it failed. ​On the question of appellate standing, the Court firmly held that an interested party cannot file an independent appeal or join proceedings as a co-appellant. The appellate process is reserved strictly for aggrieved principal parties who initiated or defended the primary suit. An interested party is admitted solely because it holds an identifiable stake in the outcome; it must align with an existing side and cannot frame fresh causes of action or broaden the dispute. Crucially, the bench ruled that invoking public interest, constitutional rights under Article 22, or a statutory mandate under Section 4 of the Law Society Act does not carve out an exception to this doctrine. Having voluntarily applied to join the suit as an interested party eight years earlier, the LSK could not retrospectively claim an involuntary status to convert itself into an appellant. ​The Court concluded by directing the High Court and the Court of Appeal to maintain procedural discipline, ordering that interested parties must remain recorded strictly as interested parties rather than being redesignated as appellants or respondents at different appellate tiers.