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Supreme CourtStruck OutPetition 3 (E004) of 2022

Dhanjal Investments Limited v Shabaha Investments Limited

Supreme Court of Kenya
8 July 2022
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoI. Lenaola W. Ouko
1,715 words in judgment
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The bottom line

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Supreme Court strikes out appeal where constitutional issue was not raised from the start in High Court.

What this practically means

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Muthaiga Country Club tried to appeal to the Supreme Court, arguing that a 24-year delay violated its right to a fair hearing. But the Supreme Court said no because the club never raised that constitutional issue in the High Court. The case was originally about interest on a land sale debt. The Court of Appeal also did not decide on the constitutional claim. So the Supreme Court lacked jurisdiction and struck out the appeal.

Executive summary

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The Supreme Court of Kenya delivered a ruling on a preliminary objection challenging its jurisdiction to hear an appeal by Muthaiga Country Club against John Mwangi Kariuki. The dispute originated from a sale agreement for land, where the High Court had determined only the issue of interest payable after the parties recorded a consent on the principal amount. The appellant appealed to the Court of Appeal, raising for the first time in submissions a claim that the 24-year delay in concluding the case violated its right to a fair hearing under Articles 25(c), 50(1), and 48 of the Constitution. The Court of Appeal declined to make findings on this constitutional issue, noting it was not pleaded and was an afterthought, and instead determined four substantive contractual issues. The appellant then appealed to the Supreme Court under Article 163(4)(a), arguing that the appeal involved constitutional interpretation. The Supreme Court upheld the preliminary objection, finding that the constitutional issue was never the subject of litigation in the High Court and was not central to the Court of Appeal's determination. The Court reiterated that for an appeal to be admissible under Article 163(4)(a), the constitutional question must have been the subject of litigation from the High Court through the Court of Appeal. Since the appeal was essentially about interest on a contractual debt, it did not meet the jurisdictional threshold. The Court struck out the petition and ordered the appellant to pay costs.

Questions the Court framed

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

  1. 1.Whether the appeal raises issues relating to the interpretation or application of the Constitution so as to invoke the Supreme Court's jurisdiction under Article 163(4)(a).

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal under Article 163(4)(a) where the constitutional issue was not raised or determined in the lower courts but was introduced for the first time in submissions before the Court of Appeal.

Holding

The Supreme Court lacks jurisdiction because the constitutional issue was not central to the determination by the lower courts and was strategically introduced to create a basis for appeal to the Supreme Court.

Reasoning

The Court examined the record and found that the sole issue after a consent in the High Court was the interest payable on the balance of the purchase price. The appellant's claim of a violation of the right to a fair hearing was not pleaded or determined in the High Court and was raised only in submissions before the Court of Appeal. The Court of Appeal itself declined to make findings on it, noting it was an afterthought. The Court held that the constitutional issue was not the subject of litigation from the High Court through the Court of Appeal, and therefore the appeal did not meet the threshold under Article 163(4)(a).

p. 3

Legal principles established

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  • For an appeal to reach the Supreme Court under Article 163(4)(a), the constitutional issue must have been litigated from the High Court through the Court of Appeal.
  • A constitutional issue raised for the first time in submissions before the Court of Appeal cannot create jurisdiction for the Supreme Court.
  • The Supreme Court will not hear appeals that are essentially about contractual disputes unless a constitutional question was central in lower courts.
  • Parties cannot strategically introduce constitutional arguments late to gain access to the Supreme Court.
  • The Court of Appeal's refusal to determine an afterthought constitutional issue means it was not part of the appeal.
  • The Supreme Court's jurisdiction is strictly limited by the Constitution and cannot be expanded by late-stage arguments.

Court orders

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  1. 1.The Preliminary Objection dated 23rd March, 2022 is hereby sustained.
  2. 2.The Petition of Appeal dated 7th March, 2022 is hereby struck out.
  3. 3.The Appellant shall bear the costs of the appeal.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
I. Lenaola W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya 2010

Relief refused

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Entertainment of the appeal on its merits

The Supreme Court lacked jurisdiction because the appeal did not involve the interpretation or application of the Constitution as required under Article 163(4)(a).

p. 4

Costs

The Appellant shall bear the costs of the appeal

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.

for an appeal to be admissible under Article 163(4)(a), a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to the Court of Appeal and ending in this Court
p. 3 Jurisdiction of the Supreme Court under Article 163(4)(a)
the question of violation of the appellant's right to a fair hearing has never been the issue in controversy but was strategically introduced in the Court of Appeal so as to prepare a basis to approach this Court.
p. 3 Introduction of constitutional issues as an afterthought
where the case to be appealed from has had nothing or little to do with the interpretation or application of the Constitution, as is the case in this appeal, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a).
p. 4 Threshold for appeals under Article 163(4)(a)

Key timeline

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2022-03-07
Petition of Appeal filed by Muthaiga Country Club.
2022-03-23
Preliminary Objection filed challenging Supreme Court jurisdiction.
2022
Supreme Court ruling sustaining the objection and striking out the appeal.

Practical implications

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For lawyers

Raise constitutional issues early

Ensure any constitutional issue is pleaded and determined in the High Court before appealing. Raising it only in submissions before the Court of Appeal will not create Supreme Court jurisdiction. This ruling reinforces that the appellate path under Article 163(4)(a) requires the constitutional question to be central from the start.

For businesses

Contract disputes rarely reach Supreme Court

If your dispute is primarily contractual, do not expect to appeal to the Supreme Court unless a constitutional issue was litigated from the High Court. Adding a constitutional argument late will not work. Plan your litigation strategy accordingly and consider finality at the Court of Appeal.

For individuals

Know your appeal route

The Supreme Court only hears cases involving constitutional interpretation that were consistently raised through lower courts. A simple contract or debt case cannot be escalated by adding a constitutional claim at the last minute. Understand the limits of appeal to avoid wasted time and costs.

Frequently asked questions

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Can I appeal to the Supreme Court of Kenya if my case involves a constitutional issue?+

Only if the constitutional issue was raised and decided in the High Court and then in the Court of Appeal. If you introduce it late, the Supreme Court will not hear it.

What happens if I raise a constitutional issue for the first time in the Court of Appeal in Kenya?+

The Court of Appeal may ignore it as an afterthought, and the Supreme Court will lack jurisdiction to hear an appeal based on that issue. You must raise constitutional questions from the start.

Does the Supreme Court of Kenya hear all appeals from the Court of Appeal?+

No. The Supreme Court only hears appeals that involve the interpretation or application of the Constitution, and only if that issue was central from the High Court through the Court of Appeal.

What was the Muthaiga Country Club case about in Kenya?+

It was a dispute over interest on a land sale debt. The club tried to appeal to the Supreme Court by claiming a fair hearing violation, but the Court struck it out because the constitutional issue was not raised in the High Court.

Later judgments citing this (20)

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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, "Dhanjal Investments Limited v Shabaha Investments Limited", Case Analysis (2022). Petition 3 (E004) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/41/eng@2022-07-08

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