Jurisdiction of the High Court

Under Article 165(3)(b) of the Constitution, the High Court holds the authority to
adjudicate matters concerning the denial, infringement, threat, or violation of fundamental rights
and freedoms. This jurisdiction is further supported by Articles 20, 22, and 23, which empower
individuals to seek redress from the High Court when their rights or freedoms are compromised.
As established in Willesden Investments Limited & 2 others the High Court must be convinced
that the alleged violations merit appropriate redress.The court's exercise of judicial authority is
also guided by the national values and principles outlined in Article 10, the principles of judicial
authority in Article 159, and the public service principles in Article 232.

Limitations on the High Court's Jurisdiction

Article 165(6) delineates the supervisory jurisdiction of the High Court over subordinate
courts and entities exercising judicial or quasi-judicial functions. However, the High Court is
precluded from exercising this supervisory authority over the Court of Appeal and the Supreme
Court. Thus, it cannot address violations of the Bill of Rights resulting from decisions made by
these superior courts, nor can it provide remedies under Article 23(3) that would nullify a
superior court's decision.

This limitation was highlighted in Kenya Hotel Properties Limited v. Attorney General
& 5 others. In that case, the Supreme Court ruled that an applicant cannot seek redress for rights
violations by filing a constitutional petition with the High Court for matters already decided by a
superior court. The court stressed that allowing such petitions would undermine the judicial
system's stability, creating potential chaos. The appellant's constitutional petition to the High
Court aimed to address rights infringements purportedly caused by the Court of Appeal's
decision. The High Court dismissed the petition, citing its lack of jurisdiction over issues
concerning superior courts' decisions. The Court of Appeal upheld this dismissal, reinforcing the
principle that the High Court cannot adjudicate violations of fundamental rights and freedoms by
superior courts.
Opinion of Willy Mutunga in the Protus Buliba Shikuku Case
Former Chief Justice Willy Mutunga, in his concurring opinion in Protus Buliba
Shikuku v. Republic asserted that the Constitution enables the High Court to address any
injustices within its jurisdiction. He stressed that the High Court has the authority to address
violations arising from appellate decisions, including appeals from lower courts and other courts
as stipulated by law. Thus, he concluded that no injustice should remain unaddressed by the
Constitution.

Nevertheless, the Supreme Court in the Kenya Hotel Properties Limited case referred to
Chief Justice Mutunga's opinion in Protus Buliba Shikuku v. Republic further insisting that the
High Court lacks the jurisdiction to remedy violations of rights and freedoms originating from
superior courts. It clarified that Chief Justice Mutunga did not imply that the High Court could
overturn final decisions of higher courts, as this would cause judicial confusion. The Supreme
Court reiterated that Chief Justice Mutunga's opinion, while influential, did not establish a
binding precedent. Consequently, the Supreme Court maintained that seeking redress for rights
violations by superior courts from the High Court for concluded matters is inappropriate.

Conclusion
The above discussion clarifies that the High Court, when exercising its original
jurisdiction, cannot declare a decision of the Supreme Court unconstitutional. This limitation is
rooted in the constraints on its supervisory jurisdiction as defined by Article 165(6) of the
Constitution and affirmed in decided caselaw.