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Supreme CourtStruck OutPetition 3 of 2020

Adega & 2 others v Kibos Distillers Limited & 5 others

Supreme Court of Kenya
4 August 2020
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
5,932 words in judgment
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The bottom line

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Supreme Court cannot hear appeals that are mainly about statutory law, not constitutional interpretation.

What this practically means

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The Supreme Court of Kenya has ruled that it cannot hear an appeal unless the lower courts actually decided the case based on interpreting the Constitution. If the case was resolved mainly using ordinary laws (like the Environmental Management and Coordination Act), the Supreme Court lacks jurisdiction. This means parties must ensure their appeal truly raises constitutional questions, not just statutory ones. The Court also suggested that courts should sometimes wait for specialized tribunals to decide before jumping into constitutional issues.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala, Ndungu, and Lenaola SCJJ) determined three preliminary objections challenging the Court's jurisdiction to hear an appeal under Article 163(4)(a) of the Constitution. The appeal arose from a dispute over environmental rights where the Environment and Land Court (ELC) had initially found it had jurisdiction to hear a constitutional petition concerning violations of the right to a clean and healthy environment. The Court of Appeal reversed that decision, holding that the ELC had usurped the jurisdiction of the National Environmental Tribunal and the National Environmental Complaints Committee, and that the doctrine of exhaustion required the petitioners to first pursue those statutory remedies. The petitioners appealed to the Supreme Court, arguing that the Court of Appeal had erred in its interpretation of the ELC's jurisdiction under the Constitution. The Supreme Court upheld the preliminary objections, finding that the issues determined by both lower courts were primarily based on statutory interpretation of the Environmental Management and Coordination Act, not on the interpretation or application of the Constitution. The Court reiterated its established jurisprudence that for an appeal to lie under Article 163(4)(a), the appeal must originate from the Court of Appeal where issues for contestation revolved around the interpretation or application of the Constitution. Since the lower courts' decisions were based on statutory provisions with only peripheral reference to the Constitution, the Supreme Court lacked jurisdiction. The Court struck out the petition but granted the petitioners liberty to pursue their claims at the appropriate forum. Each party was ordered to bear its own costs. The ruling also discussed the doctrine of judicial abstention (Pullman doctrine), suggesting that the ELC should have reserved constitutional issues pending determination by the statutory tribunals.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the instant Petition under Article 163(4)(a) of the Constitution.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the lower courts' decisions were based primarily on statutory interpretation rather than constitutional interpretation or application.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) where the lower courts' determinations were made primarily on an interrogation and adjudication of statutory provisions with only minimal reference to the Constitution.

Reasoning

The Court examined the decisions of both the Environment and Land Court and the Court of Appeal. It found that the ELC justified its jurisdiction by citing provisions of the Environmental Management & Coordination Act, not the Constitution. The Court of Appeal similarly relied on the EMCA in allowing the appeal. The Supreme Court held that where the interpretation or application of the Constitution has only a limited bearing on the merits of the main cause, its jurisdiction under Article 163(4)(a) is not properly invoked. The mere reference to constitutional provisions does not trigger the Court's jurisdiction; it must be demonstrated that the appellate court erred in interpreting or applying the Constitution.

p. 12
02

Whether the doctrine of judicial abstention (Pullman doctrine) applies in Kenya to require a court to refrain from determining issues that could be resolved by other legislatively mandated institutions.

Holding

The doctrine of judicial abstention, though not founded in constitutional or statutory provisions, is established through common law practice and provides that a court, though vested with jurisdiction, should exercise restraint if there are other appropriate legislatively mandated institutions and mechanisms to determine the issues.

Reasoning

The Court discussed the Pullman doctrine from US jurisprudence, noting that it allows courts to decline to hear cases where the case can be resolved with reference to another legal principle or forum. Applying this to the instant case, the Court stated that the ELC should have reserved the constitutional issues pending the determination of the EIA license issues by the National Environmental Tribunal, thereby affording any aggrieved party the opportunity to appeal to the Court.

p. 3

Legal principles established

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  • An appeal to the Supreme Court under Article 163(4)(a) must involve a genuine dispute over interpreting or applying the Constitution, not just statutory law.
  • Mere mention of constitutional provisions in a case does not automatically give the Supreme Court jurisdiction over the appeal.
  • Courts cannot decide cases they have no legal power to hear; jurisdiction must come from the Constitution or written law.
  • The doctrine of judicial abstention allows courts to step back and let specialized tribunals handle issues first, even if the court has general jurisdiction.
  • The Environment and Land Court and the Court of Appeal both relied on the Environmental Management and Coordination Act, not the Constitution, so the Supreme Court had no power to hear the appeal.

Court orders

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  1. 1.The Preliminary Objections by the 1st, 2nd, 3rd, 5th and 6th Respondents are hereby upheld
  2. 2.The Petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal.
  3. 3.Each party to bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Appeal No. 153 of 2019 (consolidated with 162, 187, 188, 189, 367 of 2019)
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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The Petition of Appeal dated 13th March 2020

The Supreme Court lacked jurisdiction under Article 163(4)(a) because the issues determined by the lower courts were primarily statutory, not constitutional interpretation or application.

p. 12

Costs

Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Preliminary Objections by the 1st, 2nd, 3rd, 5th and 6th Respondents are hereby upheld
p. 13 Final orders - upholding preliminary objections
The Petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal.
p. 13 Final orders - striking out petition with liberty to pursue claims at appropriate forum
Each party to bear its own costs.
p. 13 Costs order
Both Superior Courts, in our view, therefore made determinations primarily on an interrogation and adjudication of statutory provisions and minimal reference to the Constitution. It cannot thus be said that the issues were determined in consideration and pursuant to the interpretation or application of the Constitution to therefore warrant an appeal to this Court under Article 163(4)(a) of the Constitution.
p. 12 Jurisdiction under Article 163(4)(a) requires constitutional interpretation or application as the primary basis of the lower court's decision
The appeal must originate from the Court of Appeal where issues for contestation revolved around the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.
p. 10 Threshold for appeals under Article 163(4)(a)

Key timeline

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Before the appeal
Petitioners filed a constitutional petition in the Environment and Land Court (ELC) over environmental rights.
Before the appeal
ELC held it had jurisdiction; the Court of Appeal reversed, saying the ELC should have let the National Environmental Tribunal decide first.
2020
Petitioners appealed to the Supreme Court under Article 163(4)(a), arguing the Court of Appeal misinterpreted the Constitution.
2020
Supreme Court upheld preliminary objections, struck out the petition because the lower courts decided based on statute, not the Constitution.

Practical implications

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For lawyers

Draft appeals with constitutional focus

When appealing to the Supreme Court under Article 163(4)(a), ensure your client's case was decided in the lower courts squarely on interpreting the Constitution. If the Court of Appeal relied mainly on a statute like the EMCA, your appeal will be struck out. Consider framing your core arguments around constitutional provisions, not just statutory ones, and clearly show how the lower court's constitutional interpretation was wrong.

For businesses

Exhaust alternative remedies first

If you face an environmental dispute, do not rush to court on constitutional grounds. The Supreme Court endorsed the doctrine of judicial abstention: courts may wait for specialized tribunals (like the National Environmental Tribunal) to decide statutory issues first. This can save time and costs. Before filing a constitutional petition, check if there is a statutory body that should hear your case first.

For individuals

Know your forum for environmental claims

If you believe your right to a clean environment has been violated, you may need to first go to the National Environmental Tribunal or the National Environmental Complaints Committee, not directly to the Environment and Land Court. The Supreme Court has suggested that courts should let these tribunals handle the facts first. Only after exhausting those remedies might you bring constitutional issues to court.

Frequently asked questions

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When can I appeal to the Supreme Court of Kenya under Article 163(4)(a)?+

You can appeal only if the Court of Appeal’s decision was about interpreting or applying the Constitution. If the lower courts based their ruling on ordinary laws (like the Environmental Management Act), the Supreme Court will not hear your case. You must show that the constitutional issue was central, not just mentioned.

What is the Pullman doctrine in Kenya?+

The Pullman doctrine, also called judicial abstention, says courts can step back and let specialized tribunals decide issues first. In Kenya, the Supreme Court used it to suggest that the Environment and Land Court should have waited for the National Environmental Tribunal to deal with the environmental license before deciding constitutional issues. This avoids unnecessary constitutional rulings.

Can I still sue in the Environment and Land Court if my case involves both statute and Constitution?+

Yes, but you must first exhaust any remedies available through specialized bodies like the National Environmental Tribunal. The Supreme Court indicated that the ELC should not rush to decide constitutional questions if the dispute can be resolved by those tribunals. Only after that can you raise constitutional issues in court.

Does the Supreme Court have jurisdiction over all appeals from the Court of Appeal?+

No. The Supreme Court only hears appeals that involve the interpretation or application of the Constitution (Article 163(4)(a)). If the Court of Appeal decided your case using ordinary statutes, the Supreme Court will strike out your appeal. Always check the basis of the Court of Appeal’s decision before filing.

Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Adega & 2 others v Kibos Distillers Limited & 5 others", Case Analysis (2020). Petition 3 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/36/eng@2020-08-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.