Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication E039 of 2025

Kabuito Contractors Ltd v Attorney General

Supreme Court of Kenya
19 June 2026
2,078 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Supreme Court rejects appeal bid because issues were too specific to the parties.

What this practically means

#

A company claimed over 3 billion shillings for emergency road repairs under an alleged oral contract with the government. The High Court awarded the money, but the Court of Appeal overturned that decision, finding no valid contract. The company then tried to appeal to the Supreme Court, arguing the case was of general public importance. The Supreme Court disagreed, saying the issues only affected the parties and did not raise broad public concerns. The Court also noted the company improperly raised a new constitutional argument too late. The appeal was dismissed.

Executive summary

#
The Supreme Court dismissed an originating motion by the applicant seeking review of the Court of Appeal's ruling that declined to certify the applicant's intended appeal as raising issues of general public importance. The dispute arose from an alleged oral extension of a construction contract between the applicant and the Ministry of Local Government for emergency road repairs during the El-Nino rains. The High Court had awarded the applicant over Kshs. 3 billion, but the Court of Appeal set aside that judgment, finding no valid contract. The applicant then sought certification to appeal to the Supreme Court under Article 163(4)(b), which the Court of Appeal refused. In the present motion under Article 163(5), the Supreme Court applied the settled test from Steyn and Bell that a matter of general public importance must transcend the parties' dispute and bear significantly on public interest. The Court found that the applicant's issues—concerning an alleged verbal contract extension by a Permanent Secretary—were fact-specific and did not raise substantial or novel points of law affecting the public. The Court also held that the applicant improperly introduced a constitutional argument under Article 227 for the first time in the certification application, which is impermissible because constitutional issues under Article 163(4)(a) must have been litigated in the courts below. The motion was dismissed with no order as to costs, as the respondent did not participate.

Questions the Court framed

#

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

  1. 1.Whether the issues raised by the applicant in the Motion meet the criteria for matters of general public importance as set out in Steyn Vs Ruscone and Bell Vs Moi & Another.

Key legal issues

#
01

Whether the issues raised by the applicant in the Motion for review of the Court of Appeal's refusal to certify the intended appeal as raising matters of general public importance meet the criteria established in Steyn and Bell.

Holding

The issues do not meet the criteria because they are peculiar to the parties' dispute and do not transcend it; the applicant failed to demonstrate how the circumstances of an alleged oral contract with the Government would affect the general public.

Reasoning

The Supreme Court applied the settled test from Steyn and Bell that a matter of general public importance must transcend the parties' dispute and bear significantly on public interest. The Court found that the applicant's issues—concerning an alleged verbal extension of a construction contract by a Permanent Secretary—were fact-specific and did not raise substantial or novel points of law affecting the public. The Court also noted that the applicant improperly introduced a constitutional argument under Article 227 for the first time in the certification application, which is impermissible under Article 163(4)(a) as such issues must have been litigated in the courts below.

Legal principles established

#
  • A matter of general public importance must transcend the parties' dispute and bear significantly on public interest.
  • The applicant must demonstrate specific elements of real general public importance and concern.
  • A party cannot invoke both Article 163(4)(a) and (b) in the same matter.
  • Constitutional issues under Article 163(4)(a) must have been litigated in the courts below and cannot be introduced for the first time in a certification application.
  • Fact-specific contractual disputes do not qualify as matters of general public importance.

Court orders

#
  1. 1.The Originating Motion dated 4th December 2025 and filed on 9th December 2025 is hereby dismissed.
  2. 2.There shall be no orders as to costs.

The bench

#

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Nairobi Civil Appl. No. E123 of 2023
Jurisdiction invoked
Article 163(5) of the Constitution and Rule 33(2) to (5) of the Supreme Court Rules, 2020

Relief refused

#

Review of the Court of Appeal's ruling declining certification that the intended appeal raises issues of general public importance.

The issues raised do not transcend the dispute between the parties and are peculiar to the specific case; the applicant failed to demonstrate general public importance.

Costs

There shall be no orders as to costs.

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.

It is trite that a matter(s) of general public importance which would warrant the exercise of this Court’s appellate jurisdiction under Article 163(4)(b) of the Constitution should transcend the dispute between the parties, and have a significant bearing upon public interest.
p. 3 General public importance test
A party cannot have both. Needless to say, under Article 163(4)(a), the issue for interpretation and application of the Constitution must have been litigated before the two superior courts below. It cannot be introduced like the applicant has done, in an application for certification.
p. 4 Constitutional issue must be litigated below
The Originating Motion dated 4th December 2025 and filed on 9th December 2025 is hereby dismissed.
p. 4 Final order
There shall be no orders as to costs.
p. 5 Costs order

Key timeline

#
Prior to 2025
High Court awards over Kshs 3 billion to applicant for alleged oral contract.
Prior to 2025
Court of Appeal sets aside High Court judgment, finding no valid contract.
Prior to December 2025
Court of Appeal refuses to certify appeal as matter of general public importance.
2025-12-09
Applicant files originating motion in Supreme Court seeking review of certification refusal.
2026
Supreme Court dismisses motion with no order as to costs.

Practical implications

#
For lawyers

Certification strategy for Supreme Court appeals

When seeking certification under Article 163(4)(b), ensure your issues clearly transcend the parties' dispute and affect the public. Avoid introducing new constitutional arguments at this stage; they must have been litigated below. The Court strictly applies the Steyn and Bell test. Prepare to demonstrate specific public interest elements, not just factual disagreements.

For businesses

Government contract disputes: limits on appeal

If you have a contract dispute with the government, especially oral agreements, the courts will treat it as a private matter unless it raises broad legal questions. The Supreme Court will not review fact-specific cases. Ensure your contract is written and follows procurement laws to avoid being stuck at the Court of Appeal level.

For individuals

When can you appeal to the Supreme Court?

The Supreme Court only hears cases that affect the general public, not just your personal dispute. If your case involves unique facts, like an oral contract, you likely cannot appeal further. The Court also rejects new legal arguments raised late. Know that the bar for 'general public importance' is high.

Frequently asked questions

#
What is a matter of general public importance in Kenya's Supreme Court?+

It is a legal issue that goes beyond the parties involved and affects the public interest. The Supreme Court will only hear such appeals if the issue has significant bearing on the public, not just a private dispute.

Can I appeal a contract dispute to the Supreme Court in Kenya?+

Only if your case raises a question of general public importance, not just a disagreement over facts. The Court of Appeal must certify it. If the dispute is specific to your contract, like an oral agreement, the Supreme Court will likely refuse.

What happens if I raise a new constitutional argument in a Supreme Court appeal in Kenya?+

The Supreme Court will reject it. Constitutional issues must have been argued in the High Court and Court of Appeal first. You cannot introduce them for the first time when seeking certification to appeal.

How much does it cost to appeal to the Supreme Court in Kenya?+

The Court can order costs, but in this case, no costs were awarded because the government did not participate. Generally, costs are at the Court's discretion. Legal fees can be high, and the chance of success is low unless your case meets the strict public importance test.

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.

Cite this brief

#

Cite this brief

Caselaw, "Kabuito Contractors Ltd v Attorney General", Case Analysis (2026). Application E039 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/43/eng@2026-06-19

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