Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others
The bottom line
#Supreme Court lacks jurisdiction if Court of Appeal didn't interpret the Constitution.
What this practically means
#The Supreme Court dismissed John Mwangi's appeal because he took the wrong legal path. After losing at the High Court, he asked for a review instead of filing an appeal. The Court of Appeal only dealt with that review request, not a constitutional issue. The Supreme Court said it can only hear appeals where the Court of Appeal actually interpreted or applied the Constitution. Since that didn't happen here, the case was thrown out.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal meets the threshold for admission under Article 163(4)(a) of the Constitution as involving the interpretation or application of the Constitution
- 2.Whether the Court has jurisdiction to entertain the appeal
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the Court of Appeal did not interpret or apply the Constitution.
The Supreme Court lacks jurisdiction because the appeal did not arise from the Court of Appeal's interpretation or application of the Constitution; the Court of Appeal only dealt with a review application, not a constitutional appeal.
The Court held that under Article 163(4)(a), an appeal must involve the interpretation or application of the Constitution by the Court of Appeal. In this case, the appellant sought review of the High Court judgment rather than appealing it, and the Court of Appeal only considered the review ruling. Neither the High Court on review nor the Court of Appeal on appeal from that review deferred to constitutional interpretation. The appellant did not invoke the appellate jurisdiction of the superior courts, and the issues raised were not constitutional controversies that had been canvassed through the normal appellate mechanism. Therefore, the appeal did not meet the threshold for admission under Article 163(4)(a).
Whether the appeal was moot because the terms of the 3rd to 9th Respondents had expired.
The Court did not decide this issue because it found it lacked jurisdiction, but noted the respondents' argument that the reliefs sought would be inconsequential.
The 2nd to 9th Respondents argued that the 3rd to 9th Respondents' terms had expired on 29th April 2019, making the appeal academic. However, the Court did not reach this issue as it dismissed the appeal for lack of jurisdiction.
Legal principles established
#- Appeals to the Supreme Court under Article 163(4)(a) require the Court of Appeal to have interpreted or applied the Constitution.
- General references to constitutional provisions in an appeal are not enough to give the Supreme Court jurisdiction.
- Bypassing the normal appeal process by seeking review instead of an appeal breaks the required legal chain.
- If neither the High Court nor the Court of Appeal addressed constitutional interpretation, the Supreme Court cannot step in.
- A party must fault the Court of Appeal's specific constitutional reasoning, not just raise new constitutional points.
Court orders
#- 1.Preliminary Objection by the Respondents dated 19th June, 2019 be and is hereby upheld.
- 2.The Petition of Appeal dated 18th of April, 2019 be and is hereby dismissed.
- 3.The costs of all Respondents shall be borne by the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No. 385 of 2017
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Dismissal of the preliminary objection without costs
The Court lacked jurisdiction to entertain the appeal
Costs
The costs of all Respondents shall be borne by the Applicant.
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 Appellant must be faulting the Court of Appeal's interpretation or application of the Constitution that informed the impugned Judgment. General references to Constitutional Provisions are not enough to bring an appeal within the ambit of Article 164 (3) (a), if such provisions were not a basis of contestation at the Appellate Court.
At no point did the Appellant invoke the two superior courts appellate jurisdiction. Further, in coming to their decisions, the two courts did not defer to the interpretation and application of the Constitution.
Key timeline
#Practical implications
#Follow the appellate ladder strictly
If you lose at the High Court, file an appeal—not a review. Seeking review instead breaks the chain needed for Supreme Court jurisdiction under Article 163(4)(a). Ensure the Court of Appeal actually interprets or applies the Constitution, and frame your appeal to fault that specific reasoning. General constitutional references won't work.
Know when a case can reach the Supreme Court
If you're involved in a dispute that might go to the Supreme Court, understand that the Court of Appeal must have dealt with a constitutional question. If your lawyers skip the appeal step or the Court of Appeal only handles procedural issues, the Supreme Court will likely refuse to hear the case. This saves time and costs.
Don't skip the appeal step
If you lose a case at the High Court and want to go to the Supreme Court, you must first appeal to the Court of Appeal. Asking for a review instead won't work. The Supreme Court only hears cases where the Court of Appeal has already ruled on a constitutional issue. Make sure your lawyer follows the right steps.
Frequently asked questions
#Can I appeal directly to the Supreme Court in Kenya if my case involves the Constitution?+
No. The Supreme Court only hears appeals from the Court of Appeal if that court interpreted or applied the Constitution. You must first appeal to the Court of Appeal, not seek a review. General mentions of the Constitution are not enough.
What happens if I file a review instead of an appeal in Kenya?+
If you file a review at the High Court instead of an appeal, you break the legal chain. The Court of Appeal will only deal with the review, not a constitutional issue. The Supreme Court will then lack jurisdiction to hear your case, as happened in John Mwangi v Communications Authority.
What is Article 163(4)(a) of the Kenyan Constitution?+
Article 163(4)(a) allows appeals to the Supreme Court from the Court of Appeal if the case involves the interpretation or application of the Constitution. The Court of Appeal must have actually ruled on a constitutional question, and you must fault that ruling.
Why was John Mwangi's case dismissed by the Supreme Court in Kenya?+
The Supreme Court dismissed the case because it lacked jurisdiction. Mr. Mwangi sought a review at the High Court instead of an appeal, so the Court of Appeal never interpreted the Constitution. The Supreme Court can only hear appeals where the Court of Appeal has done so.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Burrough & another v Mungania & another (Civil Appeal E079 & E128 of 2023 (Consolidated)) [2026] KECA 898 (KLR)[2026] KECA 898 (KLR)15 May 2026applied
- Ganjoni Properties Limited & 11 others v Al-Riaz International Limited; F. Kinyua Kamundi & Muyaa D. T t/a Kinyua Muyaa & Co. Advocates & 11 others (Affected Party) (Civil Appeal E090 & E091 of 2022 (Consolidated)) [2025] KECA 1711 (KLR)[2025] KECA 1711 (KLR)24 Oct 2025followed
- Kenya Aviation Workers Union v AGS Worldwide Movers Limited [2021] KEELRC 1346 (KLR)[2021] KEELRC 1346 (KLR)2 Jun 2021
Cite this brief
#Cite this brief
Caselaw, "Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others", Case Analysis (2020). Petition 15 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/25/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.