Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others
The bottom line
#Supreme Court cannot hear appeals where constitutional issues were first raised only at the Supreme Court.
What this practically means
#The Supreme Court of Kenya struck out an appeal because the constitutional issues were raised for the first time at the Supreme Court, not in the lower courts. The case involved a dispute over service charges in lease agreements. The Environment and Land Court and Court of Appeal dealt only with contract law, fraud, and breach of trust. The Supreme Court ruled it lacked jurisdiction under Article 163(4)(a) because no constitutional issue was part of the earlier proceedings.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to entertain the Application and the appeal.
- 2.Whether the orders sought in the Application can issue
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where no constitutional issue was raised or determined in the courts below.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the constitutional issue was first raised in the petition of appeal before the Supreme Court and was not part of the proceedings or decisions in the Environment and Land Court or the Court of Appeal.
The court examined the pleadings from the ELC and Court of Appeal and found no mention of any constitutional article. The issues in the lower courts revolved around contract interpretation, fraud, breach of trust, and misrepresentation. The first reference to Articles 50 and 159 of the Constitution appeared only in the petition of appeal before the Supreme Court. The court applied its precedents requiring that a constitutional issue must have been an integral part of the case from the first instance and must have been interpreted by the courts below, or at least the reasoning must have taken a constitutional trajectory. Since neither condition was met, the court upheld the preliminary objection and struck out the appeal.
Whether the court should grant leave to file a Supplementary Record of Appeal when the court lacks jurisdiction over the main appeal.
The application for leave to file a supplementary record of appeal became moot once the court determined it lacked jurisdiction to hear the appeal.
The court first addressed the preliminary objection on jurisdiction. Having found that it lacked jurisdiction to entertain the appeal, the court struck out the petition of appeal. Consequently, the application for leave to file a supplementary record of appeal, which was ancillary to the appeal, was not considered on its merits as the court had no jurisdiction over the main matter.
Legal principles established
#- For an appeal to the Supreme Court as of right, the constitutional issue must have been raised and decided in the lower courts.
- A mere mention of constitutional provisions in the Supreme Court petition does not create jurisdiction if the issue was not part of lower court proceedings.
- The lower court's reasoning must have taken a trajectory of constitutional interpretation or application for the Supreme Court to have jurisdiction.
- If the Supreme Court lacks jurisdiction over the main appeal, any related applications (like filing supplementary records) become moot.
- The party challenging jurisdiction can raise a preliminary objection at any stage, even before the appeal is heard.
Court orders
#- 1.The Preliminary Objection is hereby allowed.
- 2.The petition of appeal dated 25th October 2018 and filed on 31st October 2018 is hereby struck out.
- 3.The Applicants shall bear the costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 20 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Leave to file a Supplementary Record of Appeal
The court lacked jurisdiction to entertain the appeal, so the application for leave became moot.
Costs
The Applicants shall bear the costs of the appeal.
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.
Where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an applicant should demonstrate is that the Court's reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or Application.
the first time article of the Constitution was mentioned in this appeal is in the petition of appeal filed before this court.
Having gleaned through all the pleadings before us, we find that the Appellants' before this court did not raise any constitutional issue either in the Environment and Land Court in the first instance neither was such an issue addressed in the findings of the Court of Appeal.
Key timeline
#Practical implications
#Raise constitutional issues early
When appealing to the Supreme Court under Article 163(4)(a), ensure the constitutional issue was part of the case from the first instance. Draft pleadings in the Environment and Land Court or High Court to include specific constitutional provisions. If the lower courts' reasoning took a constitutional trajectory, document that clearly in the record of appeal.
Contract disputes stay in lower courts
If your business dispute involves lease agreements, service charges, or breach of contract, expect the case to be resolved in the Environment and Land Court and Court of Appeal. The Supreme Court will only hear appeals if a constitutional issue was part of the case from the start. Plan your litigation strategy accordingly to avoid delays.
Know your appeal route
If you lose a case in the Court of Appeal, you cannot automatically appeal to the Supreme Court just by mentioning the Constitution in your appeal papers. The constitutional issue must have been argued in the lower courts. Check with your lawyer whether your case involves a constitutional question that was already part of the proceedings.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya if my case involves a constitutional issue I just thought of?+
No. The Supreme Court ruled that the constitutional issue must have been raised and decided in the lower courts first. You cannot introduce a new constitutional argument only in your Supreme Court appeal.
What happens if the Supreme Court lacks jurisdiction over my appeal in Kenya?+
The court will strike out your appeal, meaning it is dismissed without being heard on the merits. You may also be ordered to pay the other side's legal costs.
Does the Supreme Court of Kenya hear all appeals from the Court of Appeal?+
No. The Supreme Court only hears appeals as of right under Article 163(4)(a) if the case involves interpretation or application of the Constitution, and that issue was part of the lower court proceedings.
What is a preliminary objection in Kenyan courts?+
A preliminary objection is a legal argument that challenges the court's jurisdiction or the validity of the case without going into the facts. If successful, it can end the case immediately, as happened in this Supreme Court ruling.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dysara Investments Limited v Woburn Estate Limited & another (Environment & Land Case E0106 of 2024) [2025] KEELC 1117 (KLR)[2025] KEELC 1117 (KLR)5 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Dysara Investment Limited & 2 others v Woburn Estate Limited & 5 others", Case Analysis (2020). Petition 40 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/15/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.