Adega & 2 others v Kibos Distillers Limited & 5 others
The bottom line
#Supreme Court cannot hear appeals that are mainly about statutory law, not constitutional interpretation.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine the instant Petition under Article 163(4)(a) of the Constitution.
Key legal issues
#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.
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.
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.
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.
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.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objections by the 1st, 2nd, 3rd, 5th and 6th Respondents are hereby upheld
- 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.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
#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.
Costs
Each party to bear its own costs.
Quotable passages
#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
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.
Each party to bear its own costs.
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.
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.
Key timeline
#Practical implications
#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.
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.
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
#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)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zizu Investments Limited v National Environmental Authority & 3 others (Environment and Land Constitutional Petition E024 of 2024) [2026] KEELC 5108 (KLR)[2026] KEELC 5108 (KLR)29 Jul 2026applied
- One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)[2026] KECA 1380 (KLR)10 Jul 2026
- One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)[2026] KECA 1380 (KLR)10 Jul 2026
- Muraguri (Suing as Personal Representative of the Estate of Njoki Githuku (Deceased)) v Kenya Power and Lighting Company & 15 others (Environment and Land Case 278 of 2016) [2026] KEELC 4506 (KLR)[2026] KEELC 4506 (KLR)8 Jul 2026applied
- Ali & 2 others v Administration & another (Environment and Land Petition E005 of 2025) [2026] KEELC 4154 (KLR)[2026] KEELC 4154 (KLR)7 Jul 2026applied
- Onkoba v Jeptoo (Environment and Land Miscellaneous (Reference) Application E004 of 2024) [2026] KEELC 1749 (KLR)[2026] KEELC 1749 (KLR)17 Mar 2026applied
- Northern Block Residents Limited v Air View Properties Limited & 2 others (Environment and Planning Petition E042 of 2025) [2026] KEELC 1343 (KLR)[2026] KEELC 1343 (KLR)4 Feb 2026
- Benjamin v Attorney General & 55 others[2026] KESC 5 (KLR)23 Jan 2026
- Mathiu v National Land Commission & another (Environment and Land Petition E002 of 2025) [2025] KEELC 8128 (KLR)[2025] KEELC 8128 (KLR)20 Nov 2025followed
- County Government of Wajir v Salat & 2 others (Environment and Land Appeal 1 of 2024) [2025] KEELC 8104 (KLR)[2025] KEELC 8104 (KLR)13 Nov 2025
- Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)[2025] KEELC 6602 (KLR)30 Sept 2025
- Lamba & another v Pearls Kids Academy Limited & 3 others (Environment and Planning Petition E008 of 2024) [2025] KEELC 5944 (KLR)[2025] KEELC 5944 (KLR)14 Aug 2025
- Helmann v Mbogo & another (Environment & Land Case 60 of 2014) [2025] KEELC 3458 (KLR)[2025] KEELC 3458 (KLR)25 Apr 2025
- Nirestein v Director of Public Prosecution & 5 others (Environment & Land Petition E009 of 2024) [2025] KEELC 2870 (KLR)[2025] KEELC 2870 (KLR)27 Mar 2025followed
- Kenga Equatorial Hotels t/a Mombasa Continental Resort v Chege (Appeal E087 of 2024) [2025] KEELRC 162 (KLR)[2025] KEELRC 162 (KLR)30 Jan 2025applied
- Heineken East Africa Import Company Limited & another v Heineken International BV & 2 others[2024] KESC 59 (KLR)18 Oct 2024followed
- Rarieda Artisinal Miners Savings and Credit Co-operative Society Ltd & 2 others v Amlight Resources Company Limited & 4 others; National Environmental Management Authority & 2 others (Interested Parties) (Environment and Planning Petition 1 of 2024 & Environment & Land Petition 2 of 2024 (Consolidated)) [2024] KEELC 4845 (KLR)[2024] KEELC 4845 (KLR)20 Jun 2024distinguished
- Ngusilo (Suing as the Chairman of the Ogiek Council of Elders) & 2 others v Attorney General & 5 others (Petition 1 of 2023) [2024] KEELC 4427 (KLR)[2024] KEELC 4427 (KLR)30 May 2024applied
Cite this brief
#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.