Kensalt Limited v Water Resources Management Authority
The bottom line
#Supreme Court strikes out appeal because the case was not ready for final constitutional interpretation.
What this practically means
#Kensalt Limited tried to appeal directly to the Supreme Court, arguing that the case involved constitutional interpretation. But the Supreme Court disagreed. It said the lower courts had not yet decided the main issues—they only dealt with a preliminary request to throw out the case. The Court of Appeal had correctly sent the case back for a full hearing. Because no court had actually interpreted the Constitution yet, the Supreme Court had no jurisdiction to hear the appeal. The petition was struck out, and Kensalt must pay costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the petition dated 6 June 2016 has been properly brought under Article 163 (4) (a) of the Constitution
Key legal issues
#Whether the petition was properly brought under Article 163(4)(a) of the Constitution as an appeal as of right.
The petition was not properly brought under Article 163(4)(a) because the substantive matters had not been answered in the proper forum; the trial court had prematurely determined rights at an interlocutory stage, and the Court of Appeal had not interpreted or applied the Constitution.
The Supreme Court found that the trial court had engaged in a mini-trial on an application to strike out pleadings, deciding substantial issues prematurely. The Court of Appeal correctly set aside that ruling, noting that triable issues required a full hearing. Although the trial court referenced constitutional articles, the Court of Appeal did not interpret or apply the Constitution. The Supreme Court held that its jurisdiction under Article 163(4)(a) can only be invoked when substantive matters have been answered in the proper forum, which had not occurred here. The preliminary objection was therefore allowed and the petition struck out.
Legal principles established
#- To appeal to the Supreme Court under Article 163(4)(a), the case must have been fully decided on constitutional grounds by the High Court and Court of Appeal.
- A trial court cannot decide the merits of a case at an interlocutory stage, even if it mentions constitutional provisions.
- The Court of Appeal must have actually interpreted or applied the Constitution for the Supreme Court to have jurisdiction.
- A premature ruling on a strike-out application does not create a constitutional appeal as of right.
- The Supreme Court will not hear appeals where substantive issues remain unresolved in lower courts.
Court orders
#- 1.The Preliminary Objection dated 2 November 2019 is hereby allowed.
- 2.The petition dated 6 June 2019 is hereby struck out.
- 3.The petitioner shall bear the costs entailed before this Court and Courts below.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Malindi
- Civil Appeal No. 9 of 2015
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Dismissal of the preliminary objection and hearing of the petition on its merits
The petition did not meet the criteria under Article 163(4)(a) as the substantive matters had not been answered in the proper forum and the trial court's determination was premature.
Costs
The petitioner shall bear the costs entailed before this Court and Courts below.
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 was premature to determine the rights of the parties at the interlocutory stage — a position which remains unaffected by any numbers of reference made to articles of the Constitution.
for an appeal to be admissible under Article 163(4) (a), a petitioner must demonstrate that the matter coming on appeal was subject to litigation before the High Court, and has risen through the judicial hierarchy on appeal.
Key timeline
#Practical implications
#Don't rush to Supreme Court prematurely
Before filing an appeal under Article 163(4)(a), confirm that the High Court and Court of Appeal have actually decided constitutional issues. If the lower courts only handled procedural or interlocutory matters—even with constitutional references—the Supreme Court will strike out your petition. Always check that the constitutional question was fully argued and determined on the merits.
Litigation strategy: finish lower courts first
If you are involved in a dispute with a government agency, do not try to skip straight to the Supreme Court by framing your case as a constitutional matter. The Supreme Court will only hear appeals after the High Court and Court of Appeal have fully decided the case. Rushing to the highest court wastes time and money—you will be sent back to start over.
Your case must be fully decided first
If you believe a court violated your constitutional rights, you cannot appeal directly to the Supreme Court until the lower courts have made a final decision on your case. The Supreme Court only handles appeals after the High Court and Court of Appeal have both ruled. Make sure your case goes through all the proper steps before trying to reach the highest court.
Frequently asked questions
#Can I appeal directly to the Supreme Court of Kenya if my case involves the Constitution?+
No, not automatically. Under Article 163(4)(a), you can only appeal as of right if the High Court and Court of Appeal have already interpreted or applied the Constitution in your case. If they only dealt with preliminary issues, the Supreme Court will not hear your appeal.
What happens if a Kenyan court decides my case at an early stage without a full trial?+
If a court makes a decision on a preliminary application (like a request to strike out the case) without hearing all the evidence, that decision is not final. You cannot appeal it to the Supreme Court as a constitutional matter. The case must go back for a full hearing first.
Does mentioning the Constitution in a Kenyan court case guarantee a Supreme Court appeal?+
No. The Supreme Court in Kensalt v. National Water Harvesting said that simply referencing constitutional articles does not turn a procedural ruling into a constitutional interpretation. The court must have actually decided a constitutional issue for the appeal to be valid.
What is a preliminary objection in Kenya and how does it affect my case?+
A preliminary objection is a legal argument that the court has no jurisdiction or the case is legally flawed from the start. If it succeeds, the case is dismissed without a full trial. In this case, the respondent used it to stop Kensalt's Supreme Court appeal entirely.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Suleman & another v Suleman & 2 others (Environment and Land Case Civil Suit E003 of 2023) [2026] KEELC 3289 (KLR)[2026] KEELC 3289 (KLR)25 May 2026applied
- Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR)[2025] KECA 873 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Kensalt Limited v Water Resources Management Authority", Case Analysis (2020). Petition 8 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/67/eng@2020-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.