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Court of AppealDismissedCivil Application E128 of 2026

Francis Simiyu Tome v Bungoma County Assembly Service Board (CASB) & 2 others

Court of Appeal
25 September 2026
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to send a Bungoma employment dispute to the Supreme Court, ruling the issues were personal to the applicant and already settled.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kakamega (Nyamweya, Ngetich and Radido, JJ.A.) on the applicant's Notice of Motion seeking certification that his intended appeal to the Supreme Court raises matters of general public importance under Article 163(4)(b), and leave to appeal as of right under Article 163(4)(a). The intended appeal arose from the Court of Appeal's judgment in Civil Appeal No. E115 of 2024, which affirmed the Employment and Labour Relations Court's finding of unfair termination and awards of notice pay and 12 months' compensation, allowed payment of salaries withheld during interdiction, set aside a costs order, but declined reinstatement and exemplary damages. The applicant argued that the refusal of those remedies, despite a finding of unfair termination and the prior quashing of criminal charges, engaged Articles 10, 27 and 47 and required the Supreme Court's guidance. The court disposed of the Article 163(4)(a) limb summarily, holding that jurisdiction to determine whether an appeal involves interpretation and application of the Constitution lies with the Supreme Court, not the Court of Appeal. Applying the Steyn and Awendo criteria, it held that the proposed questions turned on the peculiar facts of the case and on law already settled by numerous Court of Appeal decisions and the Supreme Court in Kenfreight (EA) Ltd v Nguti; the exemplary damages claim was personal to the applicant, and mere invocation of constitutional values cannot transform an ordinary exercise of discretion into a matter of general public importance. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to appeal as of right pursuant to Article 163(4)(a) of the Constitution
  2. 2.Whether the applicant has demonstrated sufficient grounds to warrant certifying that the application raises matters of general public importance under Article 163(4)(b)

Key legal issues

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01

Whether the Court of Appeal can grant leave under Article 163(4)(a)

Holding

It cannot; that jurisdiction is exclusively the Supreme Court's.

Reasoning

The court held that determining whether an appeal involves interpretation and application of the Constitution, and thus merits the Supreme Court's attention, is a matter for the Supreme Court itself. The Court of Appeal declined to say more, disposing of the first issue summarily.

p. 4
02

Whether the proposed questions raise matters of general public importance under Article 163(4)(b)

Holding

They do not; the dispute concerned the applicant's private right to remedies under the Employment Act, dependent on peculiar facts and settled law.

Reasoning

Applying the Steyn and Awendo criteria, the court found the questions on reinstatement and exemplary damages were already settled by numerous Court of Appeal and Supreme Court authorities, left no lacuna or uncertainty, and were personal to the applicant. Constitutional values invoked in submissions cannot, without more, convert an ordinary discretionary exercise into a matter of general public importance.

p. 6

Legal principles established

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  • The Court of Appeal has no jurisdiction to certify or grant leave under Article 163(4)(a); that jurisdiction lies with the Supreme Court.
  • For certification under Article 163(4)(b), the issue must transcend the circumstances of the particular case and bear on the public interest; matters turning on specific facts or settled law do not qualify.
  • Mere invocation of constitutional values in submissions does not transform an ordinary exercise of judicial discretion into a matter of general public importance.

Court orders

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  1. 1.The application dated 21st July 2025 is dismissed with costs to the respondents

The bench

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

majority
majority
majority
On appeal from
Court of Appeal
Civil Appeal No. E115 of 2024
Jurisdiction invoked
Articles 163(4)(a) and 163(4)(b) of the Constitution; section 15 of the Supreme Court Act; Rule 36 of the Court of Appeal Rules

Relief refused

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Certification under Article 163(4)(b) and leave to appeal to the Supreme Court

The proposed questions turn on the peculiar facts of the case and on law already settled; they do not transcend the parties' interests

Leave to appeal as of right under Article 163(4)(a)

Jurisdiction to determine that an appeal involves interpretation and application of the Constitution lies with the Supreme Court, not the Court of Appeal

p. 4

Costs

The application dated 21st July 2025 is dismissed with costs to the respondents.

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.

The jurisdiction under Article 163(4)(a) of the Constitution that an appeal heard and determined by this Court involves the interpretation and application of the Constitution and merits the attention of the Supreme Court lies with the Supreme Court, and not this Court.
p. 4Jurisdiction under Article 163(4)(a)
for a case to be certified as one of general public importance, the applicant must show that the issue to be canvassed on appeal is one whose determination will transcend the circumstances of the particular case, and has a significant bearing on the public interest
Test for certification of a matter of general public importance
the mere invocation of constitutionally values in submissions, does not, without more transform an ordinary exercise of discretion into a matter of general public importance.
p. 6Constitutional gloss on discretionary remedies
The upshot of the above is that the application dated 21st July 2025 is dismissed with costs to the respondents.
p. 6Final orders

Issues in the judgment

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minor

Bench listing gives 'S RADIDO' while the signature block reads 'RADIDO S. OKIYO'; the same judge appears under two renderings.

minor

The quoted certification test ends mid-sentence with an incomplete clause.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Simiyu Tome v Bungoma County Assembly Service Board (CASB) & 2 others", Case Analysis (2026). Civil Application E128 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25

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