Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor)
The bottom line
#Supreme Court cannot supervise High Court or punish contempt after its own judgment.
What this practically means
#The Supreme Court ruled it cannot supervise other courts or punish people for disobeying its orders after it has delivered a final judgment. Only the High Court can enforce Supreme Court orders. The court also said it can only review its own decisions in very limited cases like fraud or if the law used was repealed. People who were not part of the original case cannot ask for review.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The competency of the respective applications
- 2.Whether to review, vary and/or set aside our judgment made on February 17, 2023 and if so in what manner
- 3.Whether the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents/contemnors are in contempt of the judgment and order of this honourable court dated February 17, 2023 and if so the appropriate punishment and/or consequences for such contempt
- 4.Whether to strike out Nairobi High Court Civil Suit No Comm Misc E127 of 2023 – Ngong Matanyok Wholesalers Limited & another v Kenya Breweries Limited & another and Nairobi High Court Civil Suit No Comm E075 of 2023 – Tony West & another Limited & Another vs Kenya Breweries Limited & another
Key legal issues
#Whether the Supreme Court has jurisdiction to review its own judgment under section 21A of the Supreme Court Act.
The court has jurisdiction to review its own decision only in the limited circumstances set out in section 21A and the Fredrick Otieno Outa case: fraud, deceit, misrepresentation, nullity, mistaken belief of consent, or reliance on repealed law or deliberate concealment of a statutory provision.
The court noted that it became functus officio upon delivering its judgment of February 17, 2023. The only narrow opportunity for the court's jurisdiction is by way of review as permitted by the Supreme Court Act and Rules. The court examined the grounds raised by Cogno Ventures Limited and found that none of the exceptional circumstances under section 21A were demonstrated. The application was essentially an attempt to relitigate factual issues that were not before the court on appeal and which remain pending before the High Court.
Whether the Supreme Court can entertain contempt proceedings for disobedience of its own orders after the judgment has been delivered.
The Supreme Court is functus officio after delivering its judgment and cannot entertain contempt proceedings for disobedience of its orders; enforcement lies with the High Court under section 27 of the Supreme Court Act.
The court explained that its judgment was final and not in the nature of a structural interdict. Once the judgment was delivered, the court became functus officio and nothing was expected of it in terms of supervised compliance. The court invoked section 22 of the Supreme Court Act to remit proceedings to the High Court, which has jurisdiction to deal with contempt including punishment. The court also noted that a finding of contempt that could result in deprivation of personal liberty should leave parties with an avenue for appeal, which would not be available at the apex court.
Whether a person who was not a party to the original appeal has standing to apply for review of the Supreme Court's judgment.
A person who was not a party to the proceedings before the Supreme Court lacks standing to apply for review under section 21A of the Supreme Court Act.
The court considered the application by Andrew Kilonzo, Jane Karuku, and Andrew Cowan, who were not parties to Petition No 15 of 2020. The court held that the word 'a party' in section 21A presupposes one whose locus standi is not in issue, either as an appellant, respondent, interested party, or amicus curiae. The three individuals, appearing individually regardless of their status in any of the corporate litigants, lacked standing to file the application. The court struck out their application.
Whether the Supreme Court can strike out proceedings pending before the High Court.
The Supreme Court cannot strike out proceedings pending before the High Court as it is not seized of those matters; such decisions can only ascend through the litigation hierarchy.
Bia Tosha sought to strike out two High Court suits on the ground that they violated the Supreme Court's judgment. The court held that it was not seized of matters pending before the High Court, another competent forum under the constitutional architecture. Decisions of superior courts below can only ascend to the Supreme Court through the litigation hierarchy subject to satisfying the narrow jurisdictional threshold, not through an application of this nature.
Legal principles established
#- Supreme Court has no supervisory power over other superior courts like the High Court.
- Supreme Court can only review its own judgment for fraud, deceit, nullity, or repealed law.
- Only parties to the original Supreme Court case can apply for review of its decision.
- After delivering final judgment, Supreme Court becomes functus officio and cannot handle contempt.
- Enforcement of Supreme Court orders must go through the High Court under section 27 of the Supreme Court Act.
- Supreme Court cannot strike out cases pending in the High Court; those must go through normal appeals.
Court orders
#- 1.Application No E005 of 2023 - Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 others be and is hereby struck out.
- 2.Application No E006 of 2023 – Andrew Kilonzo & 2 others v Bia Tosha Distributors & 7 Interested Parties be and is hereby struck out.
- 3.The 6th to 9th respondents / contemnors and the 1st to 25th contemnors in Application No E012 of 2023 – Bia Tosha Distributors Limited v Kenya Breweries Limited & 11 others; Javier Ferran & 24 others (interested parties) be and are hereby struck out of the proceedings.
- 4.Application No E012 of 2023 – Bia Tosha Distributors Limited v Kenya Breweries Limited & 11 others; Javier Ferran & 24 others (interested parties) be and is hereby dismissed.
- 5.Matter to proceed before the High Court on priority basis as already ordered in our judgment of February 17, 2023.
- 6.Costs to abide the outcome of the High Court determination.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Supreme Court of Kenya
- SC Pet 15 of 2020
- Jurisdiction invoked
- Article 163(3)(b) and (4) of the Constitution of Kenya, 2010; sections 3, 21(2), 21A, 24(1), 28(4) and (6) of the Supreme Court Act, 2011; rules 28(5), 31 and 32 of the Supreme Court Rules, 2020
- Consolidated with
- SC App E005 of 2023, SC App E006 of 2023, SC App E012 of 2023
Relief refused
#Review, vary and set aside the judgment of February 17, 2023 (Cogno Ventures Limited)
The application failed the dictates of section 21A and the principles in Fredrick Otieno Outa case; it was an invitation to revisit a highly contested factual finding.
Review and set aside the judgment of February 17, 2023 (Andrew Kilonzo, Jane Karuku, Andrew Cowan)
The applicants were not parties to the petition and lacked standing; the application was struck out.
Finding of contempt and punishment against the 1st to 5th respondents in Application E012 of 2023
The court was functus officio; enforcement lies with the High Court under section 27 of the Supreme Court Act.
Striking out of Nairobi High Court Civil Suit No Comm Misc E127 of 2023 and Civil Suit No Comm E075 of 2023
The court was not seized of matters pending before the High Court; such decisions can only ascend through the litigation hierarchy.
Costs
Costs to abide the outcome of the High Court determination.
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.
With the issuance of the judgment, the court became functus officio. The only narrow opportunity for the court's jurisdiction is by way of review vide an application as permitted by the Supreme Court Act and Rules.
The authority of this court to review its own decision was set out in Fredrick Otieno Outa case wherein, we found that as a general rule, this court has neither jurisdiction to sit on appeal over its own decisions nor to review its decisions other than in the manner enunciated therein.
The word 'a party' for purposes of an appeal to the Supreme Court presupposes one whose locus standi is not in issue, either as an appellant, respondent, interested party or amicus curiae.
This is because, unlike the High Court which has express supervisory jurisdiction over the subordinate courts, we do not, under the existing constitutional structure, enjoy similar powers over other superior courts.
Application No E005 of 2023 - Cogno Ventures Limited v Bia Tosha Distributors Limited & 6 others be and is hereby struck out.
Application No E006 of 2023 – Andrew Kilonzo & 2 others v Bia Tosha Distributors & 7 Interested Parties be and is hereby struck out.
Application No E012 of 2023 – Bia Tosha Distributors Limited v Kenya Breweries Limited & 11 others; Javier Ferran & 24 others (interested parties) be and is hereby dismissed.
Costs to abide the outcome of the High Court determination.
Key timeline
#Practical implications
#Enforce Supreme Court orders in High Court
If a client wins a Supreme Court order and the other side disobeys, do not file contempt in the Supreme Court. Instead, go to the High Court under section 27 of the Supreme Court Act. The Supreme Court will not hear contempt after its judgment. Also, review applications must meet strict grounds—mere disagreement is not enough.
Litigation strategy after Supreme Court ruling
If you are involved in a Supreme Court case, know that once the court delivers its final judgment, it will not supervise compliance or punish disobedience. You must enforce the order through the High Court. Also, if you were not a party to the Supreme Court case, you cannot apply for review—even if you are affected by the outcome.
You cannot join Supreme Court cases late
If you were not part of a Supreme Court case from the start, you cannot later apply to review the court's decision. The court only allows review applications from people who were already parties. If you think a Supreme Court order affects you, your remedy is to raise your concerns in the High Court, not the Supreme Court.
Frequently asked questions
#Can the Supreme Court punish someone for disobeying its orders in Kenya?+
No, after the Supreme Court delivers its final judgment, it cannot punish contempt. The High Court handles enforcement under section 27 of the Supreme Court Act. This ensures parties have a right to appeal any contempt finding, which would not be possible at the Supreme Court level.
Can I apply to review a Supreme Court decision in Kenya if I was not part of the case?+
No. Only people who were parties to the original Supreme Court case—as appellant, respondent, interested party, or amicus curiae—can apply for review. The court struck out an application by individuals who were not parties, even if they were directors of companies involved.
What grounds allow the Supreme Court of Kenya to review its own judgment?+
The Supreme Court can only review its judgment for: fraud, deceit, or misrepresentation; if the judgment is a nullity because the court lacked jurisdiction; if the court was misled into thinking parties consented; or if the judgment relied on repealed law or concealed a statutory provision.
Can the Supreme Court of Kenya strike out cases pending in the High Court?+
No. The Supreme Court cannot strike out cases that are pending in the High Court. Those cases must go through the normal appeal process—from High Court to Court of Appeal to Supreme Court. The Supreme Court only handles appeals that meet its strict jurisdictional requirements.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others[2025] KESC 79 (KLR)11 Dec 2025followed
- Kenya Railways Corporation v Ali & another; Chief Land Registrar (Interested Party) (Environment and Land Case Civil Suit 633 of 2015) [2025] KEELC 8074 (KLR)[2025] KEELC 8074 (KLR)20 Nov 2025
- Republic v National Land Commission & 6 others; Tunoi (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 7 of 2019) [2024] KEELC 6525 (KLR)[2024] KEELC 6525 (KLR)8 Oct 2024
- Trattoria Limited v Maina & 3 others[2024] KESC 54 (KLR)30 Aug 2024
Cite this brief
#Cite this brief
Caselaw, "Cogno Ventures Limited & 4 others v Bia Tosha Distributors Limited & 15 others; Kenya Breweries Limited & 6 others (Interested Parties); Ferran & 24 others (Contemnor)", Case Analysis (2023). Application E005, E006 & E012 of 2023 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/33/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.