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Supreme CourtStruck OutPetition (Application) E008 of 2025 & Application E006 of 2025 (Consolidated)

B. N. Kotecha & Sons Ltd & another v Amalo Company Limited

Supreme Court of Kenya
27 June 2025
1,624 words in judgment
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AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Supreme Court lacks jurisdiction if lower courts only exercised procedural discretion.

What this practically means

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The petitioners tried to appeal to the Supreme Court, arguing their right to be heard was violated. However, the High Court and Court of Appeal had only decided a procedural issue—whether to set aside a judgment—without interpreting the Constitution. The Supreme Court ruled it can only hear appeals where the Constitution was actually interpreted or applied. Since that didn't happen here, the appeal was struck out and the petitioners must pay costs.

Executive summary

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This ruling disposes of two notices of motion and a preliminary objection in a single judgment. The petitioners, Harshil Kishore Kotecha and another, filed a petition and an application for conservatory and stay orders seeking to stay execution of a Court of Appeal judgment and a High Court ruling. The respondent, Anil Kumar D Shah, filed a preliminary objection and a notice of motion to strike out the petition and the application for want of jurisdiction. The core issue was whether the Supreme Court had jurisdiction under Article 163(4)(a) of the Constitution to hear the appeal. The petitioners argued that the appeal involved the interpretation and application of Articles 25(c) and 50 of the Constitution on the right to be heard. The respondent contended that the lower courts had only exercised discretion on a procedural matter (setting aside an interlocutory judgment) without interpreting or applying the Constitution. The Supreme Court, guided by its precedent in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, examined the records of the High Court and Court of Appeal. It found that the High Court had exercised its discretion under Order 10 Rule 11 of the Civil Procedure Rules, and the Court of Appeal had confined itself to reviewing that discretion. Neither court had interpreted or applied the Constitution. Consequently, the Supreme Court held that the appeal did not involve the interpretation or application of the Constitution and fell outside its jurisdictional ambit under Article 163(4)(a). The court allowed the preliminary objection and the respondent's application to strike out, dismissed the petitioners' application for conservatory orders, struck out the petition, and ordered the petitioners to bear the respondent's costs, with a direction that the security for costs be refunded to the petitioners.

Questions the Court framed

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

  1. 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear the petition and the application for conservatory and stay orders.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal from the Court of Appeal where the lower courts exercised discretion on a procedural matter without interpreting or applying the Constitution.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) where the High Court and Court of Appeal confined themselves to the exercise of discretion on a procedural matter (setting aside an interlocutory judgment) and did not engage in the interpretation or application of the Constitution.

Reasoning

The court examined the records of the High Court and Court of Appeal. The High Court dismissed an application to set aside an interlocutory judgment on the ground that the draft defence did not raise a triable issue, exercising its discretion under Order 10 Rule 11. The Court of Appeal dismissed the appeal, confining itself to whether the High Court had judiciously exercised its discretion. The Supreme Court found that neither court interpreted or applied Articles 25(c) and 50 of the Constitution as the petitioners claimed. Relying on the principle in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, the court held that the appeal did not involve the interpretation or application of the Constitution and therefore fell outside its jurisdictional ambit under Article 163(4)(a).

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) requires the appeal to originate from a case where the Constitution was interpreted or applied.
  • An appellant must challenge the specific interpretation or application of the Constitution that the Court of Appeal used to decide the case.
  • Lower courts exercising discretion on procedural matters without constitutional interpretation does not invoke Supreme Court jurisdiction.
  • The Supreme Court will examine lower court records to determine if constitutional interpretation actually occurred.
  • The precedent from Lawrence Nduttu & 6000 others v Kenya Breweries Ltd governs when the Supreme Court can hear appeals.

Court orders

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  1. 1.The preliminary objection dated March 20, 2025 be and is hereby allowed
  2. 2.The notice of motion dated March 20, 2025 and filed on April 3, 2025, be and is hereby allowed
  3. 3.The notice of motion dated March 5, 2025 and filed on March 14, 2025, be and is hereby dismissed
  4. 4.The Petition of Appeal No E008 of 2025 dated March 5, 2025 and filed on March 14, 2025 be and is hereby struck out
  5. 5.The petitioners shall bear the respondent’s costs
  6. 6.We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Kisumu Civil Appeal No 81 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Conservatory orders staying execution of the Judgment of the Court of Appeal

The court lacked jurisdiction to entertain the appeal and therefore could not grant the ancillary conservatory orders.

Conservatory orders staying execution of the ruling of the High Court

The court lacked jurisdiction to entertain the appeal and therefore could not grant the ancillary conservatory orders.

Costs

The petitioners shall bear the respondent’s 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 appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.
p. 4 Jurisdiction of the Supreme Court under Article 163(4)(a)
we find that the appeal before us does not involve the application or interpretation of the Constitution and therefore falls outside the jurisdictional ambit of this court under article 163(4)(a).
p. 5 Lack of jurisdiction
The Petition of Appeal No E008 of 2025 dated March March 5, 2025 and filed on March 14, 2025 be and is hereby struck out
p. 5 Final orders

Key timeline

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2025-03-05
Petition of Appeal No E008 of 2025 and notice of motion filed by petitioners.
2025-03-14
Notice of motion filed by petitioners.
2025-03-20
Preliminary objection and notice of motion filed by respondent to strike out petition for lack of jurisdiction.
Ruling date not specified
Supreme Court allows preliminary objection, strikes out petition, and orders petitioners to pay costs.

Practical implications

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For lawyers

Jurisdictional gatekeeping for Supreme Court appeals

When drafting appeals to the Supreme Court under Article 163(4)(a), ensure the lower courts' decisions explicitly interpret or apply a constitutional provision. If the courts merely exercised procedural discretion (e.g., setting aside judgments), the Supreme Court will strike out the appeal. Always include a clear argument on how the Constitution was interpreted, not just that a right was allegedly violated.

For businesses

Litigation strategy: avoid Supreme Court on procedural issues

If you lose a procedural ruling (like setting aside a judgment) in the High Court and Court of Appeal, do not appeal to the Supreme Court unless the lower courts actually interpreted the Constitution. The Supreme Court will not hear cases that only involve procedural discretion. Instead, focus on final judgments that involve constitutional questions to preserve your right to appeal.

For individuals

Know your appeal rights: Supreme Court limits

You cannot automatically appeal to the Supreme Court just because you believe your constitutional rights were violated. The lower courts must have actually interpreted or applied the Constitution in their decision. If they only decided a procedural matter (like whether to set aside a judgment), the Supreme Court will not hear your case. Check the court's reasoning before appealing.

Frequently asked questions

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What is Article 163(4)(a) of the Kenyan Constitution?+

Article 163(4)(a) gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal if the case involves the interpretation or application of the Constitution. The appeal must challenge how the Court of Appeal interpreted or applied a constitutional provision.

Can I appeal a procedural ruling to the Supreme Court in Kenya?+

No, not if the lower courts only exercised procedural discretion without interpreting the Constitution. The Supreme Court will strike out such appeals. You must show that the Court of Appeal actually interpreted or applied a constitutional provision in its decision.

What does it mean for a court to interpret the Constitution in Kenya?+

Interpretation means the court explains the meaning of a constitutional article or applies it to the facts of the case. Simply mentioning a constitutional right without analyzing its meaning or application does not count as interpretation.

How do I know if my case involves constitutional interpretation for Supreme Court appeal?+

Check the judgments of the High Court and Court of Appeal. If they discussed the meaning of a constitutional article, applied it to the facts, or resolved a dispute about its scope, then it likely involves interpretation. If they only decided a procedural issue (like setting aside a judgment), it does not.

Later judgments citing this (1)

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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, "B. N. Kotecha & Sons Ltd & another v Amalo Company Limited", Case Analysis (2025). Petition (Application) E008 of 2025 & Application E006 of 2025 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/43/eng@2025-06-27

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