The Supreme Court’s decision to dismiss investor John Kiarie Kungu’s latest application marks more than the end of an 18-year legal battle, it reinforces the judiciary’s growing emphasis on legal certainty, procedural discipline and the finality of commercial litigation. By refusing to reopen the dispute, the court has sent a clear message that prolonged investment cases cannot be kept alive indefinitely once the available legal avenues have been exhausted.
At the heart of the case was a failed investment agreement dating back to 2003, in which Mr Kungu entrusted Sh100 million to Dyer & Blair Investment Bank for investment in shares, Treasury bonds, Treasury bills and fixed deposits. Of that amount, Sh91.5 million was eventually invested through CFC Stanbic Bank. After alleging breach of contract, he sought compensation through the courts, triggering one of Kenya’s longest-running capital markets disputes.
The High Court initially awarded Mr Kungu Sh310.3 million together with interest, holding both Dyer & Blair and CFC Stanbic jointly liable. However, the Court of Appeal significantly reduced the award in 2017 after finding that damages should only cover one year’s investment returns rather than four. It also ruled that CFC Stanbic had no contractual relationship with the investor, limiting liability solely to Dyer & Blair.
Rather than focusing on the merits of the investment dispute, the Supreme Court’s latest decision centred on procedural law. Mr Kungu sought to review a 2023 ruling that had denied him permission to appeal further, arguing that the court had failed to properly examine the legal principles governing certification for matters of public importance.
The five-judge bench unanimously rejected the application, finding that it had been filed more than two years after the original ruling, far beyond the 14-day statutory limit provided under the Supreme Court Act. Equally important, the court noted that the applicant had neither sought leave to file out of time nor demonstrated exceptional circumstances that would justify revisiting one of its own decisions.
The ruling illustrates the Supreme Court’s increasingly strict interpretation of its review jurisdiction. Unlike lower courts, the apex court is designed to settle legal questions of national significance rather than repeatedly revisit disputes between private parties. By insisting that applications satisfy both procedural timelines and substantive legal thresholds, the court seeks to preserve certainty within Kenya’s judicial system.
The judgment also clarifies the distinction between private commercial grievances and issues of public importance. While the dispute involved substantial financial losses, the court found that it did not establish legal questions whose resolution would affect the wider public or shape the country’s jurisprudence. Dissatisfaction with an earlier judgment, the judges observed, cannot by itself justify reopening concluded litigation.
For investors and financial institutions, the decision reinforces the importance of carefully structured investment agreements and clearly defined contractual relationships. The Court of Appeal’s earlier finding that CFC Stanbic could not be held liable because no direct contractual relationship existed underscores how liability in investment management disputes is determined primarily by contractual obligations rather than the movement of funds through multiple institutions.
The case also highlights the high cost of prolonged litigation. What began as a dispute over an investment made in 2003 remained unresolved for nearly two decades, consuming significant judicial resources while leaving both parties in prolonged uncertainty. Such delays can undermine confidence in commercial dispute resolution and increase legal costs for investors and financial firms alike.
Ultimately, the Supreme Court’s ruling strengthens the principle that litigation must come to an end. While access to justice includes the right to appeal, that right is subject to clear procedural limits. By declining to reopen a dispute that failed to meet those requirements, the court has reaffirmed that certainty, predictability and respect for statutory timelines remain essential pillars of Kenya’s commercial and investment legal framework.
