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Supreme CourtStruck OutPetition 14 of 2019

Cordisons International (K) Limited v Chairman National Land Commission & 44 others

Supreme Court of Kenya
30 April 2020
2,784 words in judgment
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AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Supreme Court strikes out appeal for failing to specify its jurisdiction basis.

What this practically means

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Kenwind (K) Limited appealed to the Supreme Court over a land dispute in Lamu County. The Court found that Kenwind did not clearly state which legal basis allowed the appeal. The lower courts had not interpreted the Constitution as a central issue, and no certification of general public importance was obtained. As a result, the Supreme Court struck out the appeal and ordered Kenwind to pay the respondents' costs.

Executive summary

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The Supreme Court of Kenya considered preliminary objections challenging its jurisdiction to hear an appeal from the Court of Appeal. The appellant, Kenwind (K) Limited, had sought to challenge decisions of the Environment and Land Court and the Court of Appeal regarding a dispute over the allocation of public land in Lamu County for a wind power project. The 5th, 6th, and 7th–38th respondents raised preliminary objections on two grounds: first, that the appeal did not raise any matter of constitutional interpretation or application under Article 163(4)(a) of the Constitution; and second, that the appeal had not been certified as involving a matter of general public importance under Article 163(4)(b). The Court upheld both objections. It found that the appellant had failed to specify which jurisdictional basis it was invoking, which alone rendered the appeal liable to striking out. On the merits, the Court examined the judgments of the lower courts and concluded that neither court was called upon to interpret or apply the Constitution as a central issue; the dispute was about the legality of an administrative action (a letter of allotment) and whether judicial review orders should issue. The mere reference to constitutional provisions did not transform the dispute into one requiring constitutional interpretation or application. Regarding Article 163(4)(b), the Court noted that no certification had been obtained. Consequently, the Court struck out the appeal for want of jurisdiction and awarded costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the Petition of Appeal raises any matters of constitutional interpretation or application under Article 163(4)(a) of the Constitution.
  2. 2.Whether the Petition of Appeal has been certified as one involving a matter of general public importance under Article 163(4)(b) 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 appellant did not specify the jurisdictional basis and the lower courts did not engage in constitutional interpretation or application.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) because the appellant failed to specify the jurisdictional basis, and the lower courts' decisions did not involve the interpretation or application of the Constitution as a central issue.

Reasoning

The Court noted that the appellant's memorandum of appeal did not indicate which jurisdiction it was invoking. The Court further examined the judgments of the ELC and the Court of Appeal and found that neither court was called upon to specifically and directly put the meaning, tenor and effect of any Article of the Constitution into their reasoning. The dispute was about the legality of an allotment letter and whether judicial review orders should issue, which was an administrative action question, not a constitutional one. The mere reference to Articles 47, 62, and 67 did not transform the dispute into one requiring constitutional interpretation or application.

02

Whether the Supreme Court has jurisdiction under Article 163(4)(b) to hear an appeal that has not been certified as involving a matter of general public importance.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(b) because the appellant did not obtain certification from either the Court of Appeal or the Supreme Court that the matter involves a matter of general public importance.

Reasoning

The Court stated that for an appeal to lie under Article 163(4)(b), the appellant must comply with the certification requirement under Article 163(4) and (5). The record showed that no such certification was obtained by the appellant. Therefore, the appeal could not be founded on Article 163(4)(b).

Legal principles established

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  • An appellant must clearly state which part of Article 163(4) of the Constitution they rely on for Supreme Court jurisdiction.
  • For an appeal as of right, the lower court must have interpreted or applied a specific constitutional provision as a central issue.
  • Mere mention of constitutional articles in a judgment does not automatically make it a constitutional interpretation case.
  • An appeal on grounds of general public importance requires prior certification from the Court of Appeal or Supreme Court.
  • Failure to specify jurisdiction or obtain certification leads to striking out of the appeal with costs.

Court orders

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  1. 1.The Preliminary Objections by the 5th, 6th as well as the 7th – 38th Respondents are hereby upheld.
  2. 2.The appeal herein is struck off for want of jurisdiction.
  3. 3.The Appellant shall pay the costs thereof to the 5th, 6th as well as the 7th – 38th Respondents.

The bench

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
C.A No.91 of 2018
Jurisdiction invoked
Article 163(4)(a) and (b) of the Constitution

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.

it is not for this Court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party appealing a Court of Appeal Judgment. An Appellant is expected to specify such jurisdiction with clarity to enable both the Court and the opposing party to know what case is before them.
p. 6 Jurisdiction of the Supreme Court
The fact that in doing so, reference was made to Articles 47, 62 and 67 of the Constitution for example would not qualify in the context of the dispute between the parties to bring the present appeal within the purview of Article 163(4)(a).
p. 8 Constitutional interpretation and application

Key timeline

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Not specified
Kenwind (K) Limited files appeal at Supreme Court against National Land Commission and 38 others over Lamu land allocation.
Not specified
5th, 6th, and 7th-38th respondents raise preliminary objections on jurisdiction.
Not specified
Supreme Court upholds objections, strikes out appeal for want of jurisdiction, and orders Kenwind to pay costs.

Practical implications

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For lawyers

Draft precise jurisdictional clauses

When filing an appeal to the Supreme Court under Article 163(4), explicitly state whether you rely on (a) constitutional interpretation or (b) certification of general public importance. Failure to do so, as in this case, will result in automatic striking out. Also, ensure the lower court record shows constitutional interpretation was central, not just mentioned.

For businesses

Verify appeal basis before funding

If your company is involved in a land or administrative dispute and considering a Supreme Court appeal, ensure your legal team confirms the jurisdictional basis. Without clear constitutional interpretation or certification, the appeal will be dismissed. This saves costs and avoids delays. In this case, Kenwind lost and had to pay respondents' costs.

For individuals

Know your appeal route to Supreme Court

If you lose a case in the Court of Appeal and want to go to the Supreme Court, you must either show the lower courts interpreted the Constitution as a main issue, or get a certificate that your case is of general public importance. Without this, the Supreme Court will not hear your appeal. Always ask your lawyer to confirm this before proceeding.

Frequently asked questions

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How do I appeal to the Supreme Court of Kenya?+

You must clearly state whether your appeal is based on constitutional interpretation (Article 163(4)(a)) or certification of general public importance (Article 163(4)(b)). If using (a), the lower court must have interpreted a constitutional provision as central. If using (b), you need prior certification from the Court of Appeal or Supreme Court.

What happens if I don't specify the jurisdiction basis in my Supreme Court appeal in Kenya?+

The Supreme Court will strike out your appeal for want of jurisdiction, as happened in Kenwind v National Land Commission. You will also be ordered to pay the other party's costs. Always ensure your memorandum of appeal clearly states which Article 163(4) limb you rely on.

Can I appeal to the Supreme Court of Kenya if my case only mentions the Constitution?+

No. Mere reference to constitutional articles in a judgment does not qualify. The lower court must have specifically interpreted or applied a constitutional provision as a central issue in resolving the dispute. If the case was about administrative action or land allocation, it likely does not qualify.

What is a certificate of general public importance for Supreme Court appeals in Kenya?+

It is a formal certification from the Court of Appeal or Supreme Court that your case involves a matter of general public importance. Without this certificate, you cannot appeal under Article 163(4)(b). You must apply for it before filing the appeal, or the appeal will be struck out.

Later judgments citing this (3)

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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, "Cordisons International (K) Limited v Chairman National Land Commission & 44 others", Case Analysis (2020). Petition 14 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/50/eng@2020-04-30

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