Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others
The bottom line
#Supreme Court cannot hear appeals from interlocutory rulings unless they involve constitutional interpretation.
What this practically means
#The Supreme Court struck out an appeal because it lacked jurisdiction. The Court of Appeal had dismissed the case for abuse of process after the property owner transferred land during ongoing litigation. The Supreme Court ruled that such procedural rulings do not automatically become constitutional appeals just because someone claims their rights were violated. To appeal to the Supreme Court, you must show the lower court actually interpreted the Constitution.
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 entertain Petition No. E034 of 2025 under Article 163(4)(a) of the Constitution.
- 2.Whether the Court of Appeal's ruling on an interlocutory application involved the interpretation or application of the Constitution.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from an interlocutory ruling of the Court of Appeal that struck out an appeal for abuse of process based on the doctrine of lis pendens.
The Supreme Court lacks jurisdiction because the Court of Appeal's ruling was an interlocutory decision that did not involve the interpretation or application of the Constitution; it was based on the court's inherent powers to prevent abuse of process.
The Court applied the test from Paul Mungai Kimani & 20 others v Attorney General & 2 others, requiring that an appeal under Article 163(4)(a) must raise a question of constitutional interpretation or application that has been canvassed through the superior courts. The Court found that the Court of Appeal's ruling was based on the doctrine of lis pendens and abuse of process, not constitutional interpretation. The 1st respondent's claim of violation of fair hearing rights was insufficient to confer jurisdiction, as the Court has consistently held that a mere allegation of rights violation does not bring a matter within Article 163(4)(a). The Court distinguished Ashmi Investment Limited v Riakina Limited & Another, noting that in that case the doctrine of lis pendens had transcended through the court hierarchy, whereas here it was a factual contestation.
Whether the Court of Appeal's failure to hear the substantive appeal on its merits violated the 1st respondent's right to a fair hearing under Article 50 of the Constitution.
The Court of Appeal did not violate the right to a fair hearing because the appeal was struck out for abuse of process, and the 1st respondent's own conduct (transferring the suit property pendente lite) rendered the appeal moot.
The Court noted that the 1st respondent transferred the suit property during active litigation, in violation of the doctrine of lis pendens and court orders. The Court of Appeal correctly exercised its inherent powers to strike out the appeal as an abuse of process. The 1st respondent's claim of a fair hearing violation was merely an allegation, not a demonstration that the Court of Appeal interpreted or applied the Constitution. The Court emphasized that the live controversy between the parties had ceased, and it would serve no purpose to hear the merits of an appeal where the subject matter had been transferred to a third party not before the court.
Legal principles established
#- The Supreme Court only hears appeals from interlocutory decisions if they involve a substantive constitutional issue.
- A mere claim of rights violation does not give the Supreme Court jurisdiction.
- An appellant must demonstrate and particularize how the lower court interpreted or applied the Constitution.
- The Court of Appeal can strike out an appeal for abuse of process without hearing merits.
- Transferring property during litigation (lis pendens) can render an appeal moot.
Court orders
#- 1.The applicant's Notice of Motion dated 15th August, 2025 and filed on 21st August, 2025 be and is hereby allowed.
- 2.The Preliminary Objection dated 8th August, 2025 and filed on even date in Petition No. E034 of 2025 be and is hereby allowed.
- 3.The petition of appeal dated 17th July, 2025 and filed on 21st July, 2025 in Supreme Court Petition No. E034 of 2025 is hereby struck out for want of jurisdiction.
- 4.The sum of Shs.6,000/- deposited as security in Supreme Court Petition No. E034 of 2025 be released to the petitioner.
- 5.The 1st respondent shall bear the costs of this application and Supreme Court Petition No. E034 of 2025.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E051 of 2022
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#The 1st respondent's request to have the substantive appeal heard on its merits.
The Court found it lacked jurisdiction as the appeal arose from an interlocutory ruling that did not involve constitutional interpretation or application.
Costs
The 1st respondent shall bear the costs of this application and Supreme Court Petition No. E034 of 2025.
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.
this Court does not have jurisdiction to entertain appeals from interlocutory decisions save for where the interlocutory decision in question 'is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.'
the mere claim by a party to the effect that its rights were violated by a superior court, for whatever reason, does not bring the intended appeal within the purview of Article 163(4)(a) of the Constitution.
an appellant before this Court must demonstrate and particularize the basis of dissatisfaction with the appellate court's interpretation or application of the Constitution. It is not the mere allegation or citing of Constitutional provisions that places a matter within Article 163(4)(a) of the Constitution.
The petition of appeal dated 17th July, 2025 and filed on 21st July, 2025 in Supreme Court Petition No. E034 of 2025 is hereby struck out for want of jurisdiction;
The 1st respondent shall bear the costs of this application and Supreme Court Petition No. E034 of 2025.
Key timeline
#Practical implications
#Supreme Court jurisdiction limited on interlocutory appeals
When appealing to the Supreme Court under Article 163(4)(a), ensure the Court of Appeal ruling actually interpreted the Constitution. A mere allegation of rights violation is insufficient. If the ruling is based on procedural grounds like abuse of process, the Supreme Court will strike out the appeal. Prepare to demonstrate specific constitutional interpretation.
Property transfers during litigation risky
If you are involved in a property dispute, do not transfer the land while the case is ongoing. Doing so violates the doctrine of lis pendens and can lead to your appeal being struck out as an abuse of process. This ruling shows courts will penalize such conduct, potentially ending your case without a hearing on merits.
Appealing to Supreme Court? Know the rules
You cannot appeal every court decision to the Supreme Court. The Supreme Court only hears cases that involve interpreting the Constitution. If a lower court dismisses your case for procedural reasons (like missing deadlines or abuse of process), that is not a constitutional issue. You must show the court actually applied the Constitution incorrectly.
Frequently asked questions
#Can I appeal a Court of Appeal ruling to the Supreme Court in Kenya if I feel my rights were violated?+
No, not automatically. The Supreme Court only hears appeals where the Court of Appeal interpreted or applied the Constitution. A mere claim of rights violation is not enough; you must show the ruling actually involved constitutional interpretation.
What is the doctrine of lis pendens in Kenya?+
It means that while a lawsuit is ongoing, you cannot transfer the property in dispute to someone else. If you do, the court can consider it an abuse of process and strike out your case. This ruling confirms that.
How do I know if my case qualifies for Supreme Court appeal in Kenya?+
Your case must involve a question of constitutional interpretation or application that was argued in the lower courts. The Supreme Court will not hear appeals on procedural rulings or factual disputes unless they directly involve the Constitution.
What happens if I transfer property during a court case in Kenya?+
You risk having your appeal struck out for abuse of process. The court may also order you to pay costs. The property transfer does not stop the case; it may actually end it against you.
Cite this brief
#Cite this brief
Caselaw, "Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others", Case Analysis (2026). Application E027 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/24/eng@2026-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.