1. The question before the Court today is whether this Judge should certify the Petition herein in terms of Article 165(4) of the Constitution, with the consequence that the Hon. The Chief Justice would thereafter empanel a bench comprising an uneven number of Judges, not being less than three, to hear and determine both all other pending interlocutory matters as well the main matter.
2. The Supreme Court of India in the case of Sir Chunilal V Mehta and Sons Limited -v- Century Spinning and Manufacturing Company Limited laid down a five-prong test for determining whether a substantial question of law arises within a matter as set out in that case is as follows:
a. Whether directly or indirectly the questions affects the substantial rights of parties;
b. Whether the question is of great public importance;
c. Whether the question is novel and has not been settled in a decision of the apex court;
d. Whether the issue is not free from difficulty; and
e. Whether there are alternative views and interpretations adopted by the Parties.
3. Having heard from the parties and their counsel, I must make clear from the outset that in determining a question of certification the Court must ensure that it does not delve into the relative merits or demerits of the contested legal and factual positions at issue in the Petition before it.
4. The role of the Judge is to weigh those contested legal and factual positions against the applicable legal tests to determine if on the face of it significant questions of law that warrant certification are raised that. In the case of Community Advocacy Awareness Trust & Others -v- The Attorney General and Others [ HC Pet 243 of 2011] the Court observed that the Constitution does not define what is ‘a substantial question of law’ and the same is left to the individual judge.
5. The High Court has consistently taken the position that in determining whether there is a substantial question of law, the Judge must take into account the Constitution as a whole and apply the same to the individual case and circumstances before it. Additionally, to my mind it is not sufficient that a matter is of great interest to the public or it raises substantial questions of the public interest; the Petition must ultimately raise significant questions of constitutional or statutory law for the same to be fit for certification.
6. It is also worth noting that a decision of the High Court of Kenya has the same jurisprudential weight whether delivered by a single judge or by a multi-judge bench. Majanja J ,in the case of Harrison Kinyanjui –vs- Attorney General & Another (20123) eKLR, perfectly and succinctly answered the jurisprudential questions at play by holding that:
“The meaning of “substantial question” must take into account the provision of the Constitution as a whole and the need to dispense justice without delay particularly given specific situation. In other words, each case must be considered on its merit by the judge certifying the matter. It must also be remembered that each High Court judge has authority under Article 165 of the Constitution to determine any matter that is within the jurisdiction of the High Court. Furthermore, and notwithstanding the provisions of Article 165(4) the decision of a 3-judge bench is of equal force to that if a single judge exercising the same jurisdiction. A single judge deciding a matter is not obligated to follow a decision of the court delivered by 3 judges”.
7. A ruling or judgment dated, signed, and delivered by a multi-judge bench of the High Court is no greater a decision of the High Court than that emanating from a single judge. The application of Article 165(4) of the Constitution is not to create a tiered status or hierarchy of High Court decisions in which those of a single judge are somehow lesser than those of a multi-judge bench. Article 165(4) operates as a means by which truly exceptionally weighty cases are placed on the shoulders three or more judges to bear. The Constitution fully expects that a single Judge bench of the High Court will hear and determine complex, novel, significant, difficult, and highly contested cases as part of the day-to-day demands on that judge. To certify a matter for empanelment, therefore, requires that the case so greatly exceeds the ordinary litigation brought before a single judge that it requires three, five, seven or such greater uneven number of judges to hear and determine that matter.
8. It is clear to this Judge that the applicable tests for a substantial question of law deserving of empanelment has not been met in the present case. To my mind, it would appear that the Petition herein is one which comfortably fits within the single-judge jurisdiction of the High Court under Article 165(3) of the Constitution. Neither the 35 Declarations and Orders sought in the Petition dated 23/07/2024 nor the 38 Declarations and Orders sought in the Amended Petition dated 02/08/2024, while serious and significant, rise to the level required for consideration and determination by a multi-judge bench. This Petition is, and has always been, comfortably within the province of a single-judge bench.
9. Accordingly, I decline to certify this matter in terms of Article 165(4), and this Petition and its interlocutory matters shall proceed in the regular manner.
DATED, SIGNED, AND DELIVERED VIRTUALLY ON THIS 11 TH DAY OF FEBRUARY 2026
……………………………………………………………
BAHATI MWAMUYE MBS
JUDGE
2. The Supreme Court of India in the case of Sir Chunilal V Mehta and Sons Limited -v- Century Spinning and Manufacturing Company Limited laid down a five-prong test for determining whether a substantial question of law arises within a matter as set out in that case is as follows:
a. Whether directly or indirectly the questions affects the substantial rights of parties;
b. Whether the question is of great public importance;
c. Whether the question is novel and has not been settled in a decision of the apex court;
d. Whether the issue is not free from difficulty; and
e. Whether there are alternative views and interpretations adopted by the Parties.
3. Having heard from the parties and their counsel, I must make clear from the outset that in determining a question of certification the Court must ensure that it does not delve into the relative merits or demerits of the contested legal and factual positions at issue in the Petition before it.
4. The role of the Judge is to weigh those contested legal and factual positions against the applicable legal tests to determine if on the face of it significant questions of law that warrant certification are raised that. In the case of Community Advocacy Awareness Trust & Others -v- The Attorney General and Others [ HC Pet 243 of 2011] the Court observed that the Constitution does not define what is ‘a substantial question of law’ and the same is left to the individual judge.
5. The High Court has consistently taken the position that in determining whether there is a substantial question of law, the Judge must take into account the Constitution as a whole and apply the same to the individual case and circumstances before it. Additionally, to my mind it is not sufficient that a matter is of great interest to the public or it raises substantial questions of the public interest; the Petition must ultimately raise significant questions of constitutional or statutory law for the same to be fit for certification.
6. It is also worth noting that a decision of the High Court of Kenya has the same jurisprudential weight whether delivered by a single judge or by a multi-judge bench. Majanja J ,in the case of Harrison Kinyanjui –vs- Attorney General & Another (20123) eKLR, perfectly and succinctly answered the jurisprudential questions at play by holding that:
“The meaning of “substantial question” must take into account the provision of the Constitution as a whole and the need to dispense justice without delay particularly given specific situation. In other words, each case must be considered on its merit by the judge certifying the matter. It must also be remembered that each High Court judge has authority under Article 165 of the Constitution to determine any matter that is within the jurisdiction of the High Court. Furthermore, and notwithstanding the provisions of Article 165(4) the decision of a 3-judge bench is of equal force to that if a single judge exercising the same jurisdiction. A single judge deciding a matter is not obligated to follow a decision of the court delivered by 3 judges”.
7. A ruling or judgment dated, signed, and delivered by a multi-judge bench of the High Court is no greater a decision of the High Court than that emanating from a single judge. The application of Article 165(4) of the Constitution is not to create a tiered status or hierarchy of High Court decisions in which those of a single judge are somehow lesser than those of a multi-judge bench. Article 165(4) operates as a means by which truly exceptionally weighty cases are placed on the shoulders three or more judges to bear. The Constitution fully expects that a single Judge bench of the High Court will hear and determine complex, novel, significant, difficult, and highly contested cases as part of the day-to-day demands on that judge. To certify a matter for empanelment, therefore, requires that the case so greatly exceeds the ordinary litigation brought before a single judge that it requires three, five, seven or such greater uneven number of judges to hear and determine that matter.
8. It is clear to this Judge that the applicable tests for a substantial question of law deserving of empanelment has not been met in the present case. To my mind, it would appear that the Petition herein is one which comfortably fits within the single-judge jurisdiction of the High Court under Article 165(3) of the Constitution. Neither the 35 Declarations and Orders sought in the Petition dated 23/07/2024 nor the 38 Declarations and Orders sought in the Amended Petition dated 02/08/2024, while serious and significant, rise to the level required for consideration and determination by a multi-judge bench. This Petition is, and has always been, comfortably within the province of a single-judge bench.
9. Accordingly, I decline to certify this matter in terms of Article 165(4), and this Petition and its interlocutory matters shall proceed in the regular manner.
DATED, SIGNED, AND DELIVERED VIRTUALLY ON THIS 11 TH DAY OF FEBRUARY 2026
……………………………………………………………
BAHATI MWAMUYE MBS
JUDGE