Authority of Courts: Macharia on Kenya Jurisdiction

A court can be convinced that a dispute deserves an answer and still be legally unable to give one. That is the practical force of Samuel Kamau Macharia v Kenya Commercial Bank. The case is often quoted for a short proposition: jurisdiction comes from the Constitution or legislation. Its deeper lesson is that judicial power must be traced to a valid legal source before fairness, convenience or the strength of the claim can matter.

For an ordinary litigant, jurisdiction can sound like a technical word used by lawyers to avoid the real dispute. Macharia shows why that description is incomplete. Jurisdiction identifies which court may exercise public power over a particular kind of case, appeal or remedy. If the legal system has not given that authority to the court, the judge cannot create it simply because hearing the case would seem sensible. The rule therefore protects litigants from decisions made by the wrong institution as much as it restricts courts.

The dispute that produced the rule

Macharia & another v Kenya Commercial Bank Ltd & 2 others, Application 2 of 2011 [2012] KESC 8 (KLR), arose from commercial litigation that had already reached the Court of Appeal before Kenya's 2010 Constitution established the present Supreme Court. Samuel Kamau Macharia and the Official Receiver for Madhupaper International Limited sought to reopen a Court of Appeal judgment delivered in 2008.

They relied on section 14 of the Supreme Court Act 2011, which purported to create a special power of review in specified circumstances. The central constitutional question was not whether the applicants had suffered an injustice in the earlier litigation. It was whether Parliament had validly given the newly established Supreme Court a category of jurisdiction that Article 163 of the Constitution did not itself provide.

The Supreme Court held that it lacked jurisdiction. Article 163 defined the Court's jurisdiction, while Article 163(9) allowed Parliament to make further provision for the Court's operation. That authority to regulate operation did not permit Parliament to invent an additional substantive jurisdiction outside the constitutional design. Section 14 could therefore not be used to revive the completed 2008 dispute.

What the case actually establishes

The binding rule is that a court may exercise only jurisdiction conferred by the Constitution, by valid legislation, or by both acting together. A court cannot enlarge that authority through judicial innovation. Parties cannot supply missing subject-matter jurisdiction by agreement, silence or acquiescence. Parliament may confer jurisdiction where the Constitution permits legislation to do so, but it cannot use an ordinary Act to contradict an exhaustive constitutional allocation of judicial power.

This is why Macharia is more than a procedural authority. The case treats jurisdiction as part of constitutional structure. Courts exercise coercive public power: they issue injunctions, determine property rights, imprison people, invalidate public action and bind parties through final judgments. Requiring an identifiable source of jurisdiction ensures that those consequences are produced only by an institution the legal order has authorised.

The same idea appears in international fair-trial standards. Article 14 of the International Covenant on Civil and Political Rights refers to a competent, independent and impartial tribunal established by law. That international guarantee does not decide the detailed division of jurisdiction among Kenyan courts, but it reinforces the broader principle that adjudicative authority should be legally established rather than improvised.

The law has changed, but the precedent has not disappeared

A current article must distinguish the rule in Macharia from the statutory provision that generated the dispute. Section 14 of the Supreme Court Act was repealed by the Supreme Court (Amendment) Act 2022. The special review provision that the Court rejected in 2012 is therefore no longer a live route to the Supreme Court.

The constitutional principle, however, remains firmly in use. Kenyan courts continued in 2025 and 2026 to cite Macharia when determining whether an appeal, constitutional petition, criminal application or specialist dispute fell within the authority of the forum asked to decide it. Recent decisions repeatedly use the case for the proposition that jurisdiction is not a procedural technicality and cannot be assumed where the Constitution or statute does not confer it.

That current use is important for legal publishing. The accurate lesson is not that section 14 still creates a jurisdiction problem. It is that Macharia supplies a method for testing any claimed judicial power: identify the legal source, identify its limits and determine whether the particular dispute falls within them.

Jurisdiction is not the same as every procedural defect

Macharia is sometimes cited too quickly. Not every failure to comply with a rule removes jurisdiction. A court may possess lawful authority over the subject matter and parties while still facing a problem of pleading, admissibility, exhaustion, limitation, service or case management. Those questions can be serious, but they do not automatically mean that the court lacks the underlying power to adjudicate.

The distinction matters because calling every defect jurisdictional can produce unnecessary dismissal and deny access to justice without constitutional justification. The correct question is whether the alleged defect concerns the existence of the court's legal authority to hear this category of dispute or grant this category of relief. If the authority exists and the problem concerns how that authority should be exercised, other procedural principles may apply.

Article 159(2)(d) does not create jurisdiction either. Its direction to administer justice without undue regard to procedural technicalities operates within lawful judicial power. It can assist a court in handling curable procedure; it cannot confer a jurisdiction that the Constitution or statute withholds.

How an advocate should test jurisdiction before filing

A practical jurisdiction review should begin before the merits are drafted. Counsel should identify the proposed court or tribunal and then locate the exact constitutional or statutory provision conferring authority. The next step is to test subject matter, appellate route, territorial limits, monetary limits where applicable, time limits that define competence, and any statutory conditions that must exist before the forum can act.

The pleading should explain jurisdiction rather than merely assert it. If a constitutional petition belongs in the High Court, the petition should identify the relevant part of Article 165 or other enabling law. If an appeal is brought to the Supreme Court, the party should identify the constitutional appellate pathway and show why the case falls within it. If a specialist court or tribunal is involved, its constitutive statute should be examined before the claimant chooses the forum.

For a respondent, a genuine jurisdictional objection should be raised early and precisely. The objection should identify the legal source relied upon by the claimant, the limit said to have been crossed and the consequence required by law. A vague statement that the court 'has no jurisdiction' adds little unless the legal boundary is identified.

Macharia and Lillian S do different work

Macharia is often cited together with Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd. The two authorities are complementary but not identical. Lillian S is remembered for the procedural consequence of a true absence of jurisdiction: once a court determines that it has no authority, it must stop. Macharia focuses more sharply on the source and constitutional limits of that authority.

Read together, they create a useful sequence. First ask where jurisdiction comes from. That is the Macharia question. Then ask what the court must do if the required authority is absent. That is the practical force associated with Lillian S. Keeping the cases distinct makes both precedents clearer and avoids turning 'jurisdiction is everything' into a substitute for legal analysis.

Why the case still matters

Macharia remains useful because it puts institutional legality before judicial improvisation. The rule does not prefer form over justice. It defines lawful justice as a decision made by the institution authorised to make it.

For litigants, the case reduces the risk of spending years pursuing a claim in a forum whose final decision may be void. For judges, it requires disciplined attention to the legal foundation of power. For Parliament, it is a reminder that legislation dealing with courts must respect the constitutional allocation of jurisdiction.

The practical question to remember is simple: before asking whether a court should grant the remedy, ask why that court has legal authority to decide the dispute at all. Macharia remains binding because that question is permanent even though the particular statutory provision challenged in 2012 has since been repealed.

Source note

This article is based on Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Constitution of Kenya 2010, the current Supreme Court Act including the repeal of former section 14, later Kenyan decisions applying the Macharia jurisdiction rule, and Article 14 of the International Covenant on Civil and Political Rights as contextual international fair-trial guidance.

Suggested citation: 

Ronald Serwanga, “Authority of Courts: Macharia on Kenya Jurisdiction” East Africa Legal Insight (8 September 2026).