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Supreme CourtStruck OutPetition (Application) E028 of 2025

Kamuthi Farmers Cooperative Society Limited v Nairobi City County; Catholic Arch Diocese of Nairobi (Kahawa West Catholic Church) (Interested Party)

Supreme Court of Kenya
5 December 2025
2,234 words in judgment
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AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear land disputes unless constitutional interpretation is involved.

What this practically means

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The Supreme Court struck out an appeal by Kahawa Farmers Cooperative Society because the case was about land ownership, not constitutional interpretation. The Court of Appeal had not decided any constitutional issues. Under Article 163(4)(a) of the Constitution, the Supreme Court only hears appeals that involve interpreting or applying the Constitution. Since this dispute was purely about who owned the land, the Supreme Court had no power to hear it. The application for a stay of execution was also dismissed.

Executive summary

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This was an application by Kahawa Farmers Cooperative Society Limited seeking a stay of execution of the Environment and Land Court judgment delivered on 4th June 2020, and a stay of further proceedings in the ELC case, pending the hearing and determination of its appeal to the Supreme Court. The applicant claimed ownership of two parcels of land and argued that the respondent's counterclaim was time-barred under the Limitation of Actions Act, raising a constitutional issue regarding the Court of Appeal's jurisdiction. The respondent filed a preliminary objection challenging the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution, arguing that the appeal did not involve the interpretation or application of the Constitution. The Supreme Court, in a unanimous judgment delivered by Chief Justice Koome, upheld the preliminary objection and struck out the appeal. The Court held that the dispute between the parties was solely regarding ownership of the suit property and no constitutional issues were raised or determined by the Court of Appeal. The Court cited Lawrence Nduttu & 6000 Others Vs Kenya Breweries Ltd & another to emphasize that only appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court. Consequently, the Court found it lacked jurisdiction to entertain both the appeal and the application for stay, and dismissed the application. The Court ordered the applicant to bear the costs of the application and directed that the deposit for security of costs be refunded to the appellant.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to entertain the appeal under Article 163(4)(a) of the Constitution.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal that does not involve the interpretation or application of the Constitution.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) where the dispute between the parties was solely regarding ownership of land and no constitutional issues were raised or determined by the Court of Appeal.

Reasoning

The Court analyzed the record and found that the main issue before the trial court was the ownership of two parcels of land. The Court of Appeal addressed the issue of limitation of actions and constructive trust, but did not follow a constitutional trajectory. The applicant's attempt to frame the issue as constitutional by invoking Articles 25(c), 50, and 159(2)(e) was rejected because the Court of Appeal's determination did not involve the interpretation or application of the Constitution. The Court cited Lawrence Nduttu & 6000 Others Vs Kenya Breweries Ltd & another to emphasize that only appeals arising from cases involving the interpretation or application of the Constitution can be entertained.

02

Whether the Supreme Court can grant a stay of execution pending appeal where it lacks jurisdiction over the substantive appeal.

Holding

Where the Supreme Court lacks jurisdiction to entertain the appeal, it cannot grant a stay of execution, and the application for stay must be dismissed.

Reasoning

The Court determined that since it lacked jurisdiction to entertain the appeal under Article 163(4)(a), it could not evaluate the application for stay against the criteria set out in Gatirau Peter Munya Vs Kithinji & 2 others. The application for stay was therefore dismissed for lack of jurisdiction.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) requires the Court of Appeal to have decided a constitutional issue.
  • A party cannot create Supreme Court jurisdiction by framing a land dispute as a constitutional question after the fact.
  • If the Supreme Court lacks jurisdiction over the main appeal, it cannot grant a stay of execution.
  • The Supreme Court can summarily dismiss a petition that is obviously defective on its face.
  • Costs follow the event: the losing party pays the costs of the application.

Court orders

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  1. 1.The Preliminary Objection dated 26th June 2025 and filed on 27th June 2025 is hereby upheld.
  2. 2.The Notice of Motion dated 24th June 2025 and filed on 18th July 2025 is hereby dismissed.
  3. 3.The Petition of Appeal dated 24th June 2025 and filed on 18th July 2025 is hereby struck out for want of jurisdiction.
  4. 4.The applicant shall bear the costs of the application.
  5. 5.The deposit for security of costs to be refunded to the appellant.

The bench

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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 of Kenya
Civil Appeal No. E047 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Stay of execution and/or enforcement of the entire judgment of the Environment and Land Court delivered on 4th June 2020

The Court lacked jurisdiction to entertain the appeal and the application.

Stay of further proceedings in Nairobi Milimani ELC No. 6898 of 1991

The Court lacked jurisdiction to entertain the appeal and the application.

Costs

The applicant shall bear the costs of the application.

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.

Our analysis of the records leads us to the conclusion that the dispute between the parties was solely regarding the ownership of the suit property and no constitutional issues were raised.
p. 4 Lack of constitutional issue in the appeal
The Petition of Appeal dated 24th June 2025 and filed on 18th July 2025 is hereby struck out for want of jurisdiction.
p. 5 Final order striking out the appeal
The applicant shall bear the costs of the application.
p. 5 Costs order

Key timeline

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2020-06-04
Environment and Land Court delivers judgment on land ownership.
2025-06-24
Kahawa Farmers files Notice of Motion for stay of execution and Petition of Appeal to Supreme Court.
2025-06-26
Respondent files Preliminary Objection challenging Supreme Court jurisdiction.
2025-06-27
Preliminary Objection filed in court.
2025-07-18
Notice of Motion and Petition of Appeal formally filed.
2025-06-27
Supreme Court upholds Preliminary Objection, strikes out appeal and dismisses stay application.

Practical implications

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For lawyers

Draft appeals with constitutional hooks

When appealing to the Supreme Court under Article 163(4)(a), ensure the Court of Appeal judgment explicitly interprets or applies a constitutional provision. Merely mentioning constitutional articles in submissions is insufficient. If the lower courts decided purely on land law or limitation issues, the Supreme Court will strike out the appeal. Include a clear constitutional question in the memorandum of appeal.

For businesses

Land disputes end at Court of Appeal

If your business is involved in a land ownership dispute that does not raise constitutional issues, the Court of Appeal is the final court. You cannot appeal to the Supreme Court simply because you disagree with the outcome. Plan your litigation strategy accordingly: invest resources in the Environment and Land Court and Court of Appeal, as those are likely the last word.

For individuals

Know your final appeal court

If you are fighting a land case in Kenya, understand that the Supreme Court will only hear your appeal if the case involves interpreting the Constitution. For ordinary land ownership disputes, the Court of Appeal is the highest court you can go to. Do not waste time and money filing a Supreme Court appeal that will be struck out for lack of jurisdiction.

Frequently asked questions

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

Only if the Court of Appeal decided the case by interpreting or applying the Constitution. If the dispute was purely about land ownership, limitation periods, or trusts, the Supreme Court has no jurisdiction. The Court of Appeal is the final court for such cases.

What happens if I file a Supreme Court appeal without a constitutional issue in Kenya?+

The Supreme Court will strike out your appeal for lack of jurisdiction. You will also have to pay the other side's legal costs. The court can dismiss the case summarily without hearing the merits.

Does mentioning constitutional rights in my submissions guarantee Supreme Court jurisdiction in Kenya?+

No. The Supreme Court looks at what the Court of Appeal actually decided, not what you argued. If the Court of Appeal resolved the case on non-constitutional grounds like land law or limitation, the Supreme Court will not hear the appeal.

Can I get a stay of execution while appealing to the Supreme Court in Kenya?+

Only if the Supreme Court has jurisdiction over your main appeal. If the court lacks jurisdiction, it cannot grant a stay. You must first establish that your appeal involves a constitutional interpretation issue.

Cite this brief

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Cite this brief

Caselaw, "Kamuthi Farmers Cooperative Society Limited v Nairobi City County; Catholic Arch Diocese of Nairobi (Kahawa West Catholic Church) (Interested Party)", Case Analysis (2025). Petition (Application) E028 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/74/eng@2025-12-05

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