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Supreme CourtPartially AllowedPetition (Application) E021 of 2024

Kenya National Highways Authority v Five Star Agencies Limited & another

Supreme Court of Kenya
25 October 2024
1,751 words in judgment
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AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Supreme Court lacks jurisdiction if constitutional issues were not litigated in lower courts.

What this practically means

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The Supreme Court struck out KeNHA's appeal because it did not involve constitutional interpretation. The lower courts had decided the case using land laws and civil procedure, not the Constitution. Also, KeNHA was not a party in the original case, so it had no right to appeal. The Court said that only parties who participated in the entire case can appeal directly to the Supreme Court.

Executive summary

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The Supreme Court of Kenya considered an application by the 1st respondent, Abdulsalam Sharifi Abdulahi, to strike out the appellant's petition of appeal for want of jurisdiction. The appellant, Kenya National Highways Authority (KeNHA), had appealed under Article 163(4)(a) of the Constitution, arguing that the appeal involved the interpretation and application of Articles 40, 47, and 50 of the Constitution concerning just compensation and access to court in compulsory acquisition. The 1st respondent contended that the appeal raised no constitutional issue, as the lower courts had determined the matter based on the Government Proceedings Act, the Land Act, and the Civil Procedure Rules, and that the appellant lacked locus standi having not participated in the main suit. The 2nd respondent associated with the 1st respondent's position. The Supreme Court examined the record and found that the central issues before the Environment and Land Court and the Court of Appeal were whether the National Land Commission was subject to execution by garnishee proceedings and whether the appellant had locus standi. The Court of Appeal applied the Land Act, not the Constitution. The Supreme Court held, applying its settled jurisprudence in Lawrence Nduttu and Law Society of Kenya, that the appeal did not meet the jurisdictional threshold under Article 163(4)(a) because no cogent questions of constitutional interpretation or application arose for determination by the superior courts below. The court also held that the appellant lacked locus standi to invoke its jurisdiction, having not litigated the issues before the lower courts. Consequently, the court allowed the application, struck out the petition of appeal, ordered the refund of security for costs, and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear and determine the appeal.
  2. 2.Whether the appellant has the requisite locus standi to invoke the Supreme Court's jurisdiction.
  3. 3.Whether the appeal raises issues of constitutional interpretation or application that were litigated before the superior courts below.

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 where no constitutional interpretation or application was litigated before the superior courts below.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) where the appeal does not challenge the Court of Appeal's interpretation or application of the Constitution, and where the issues determined by the lower courts did not revolve around constitutional interpretation or application.

Reasoning

The court examined the record of the Environment and Land Court and the Court of Appeal and found that the central issues were whether the National Land Commission was subject to execution by garnishee proceedings, and whether the appellant had locus standi. The Court of Appeal applied the Land Act and Civil Procedure Rules, not the Constitution. The appellant did not litigate constitutional issues before the lower courts. The court applied its settled jurisprudence in Lawrence Nduttu and Law Society of Kenya to hold that the appeal did not meet the jurisdictional threshold.

02

Whether a party who did not litigate issues before the superior courts below can invoke the Supreme Court's jurisdiction under Article 163(4)(a).

Holding

A party who did not litigate the issues in question before the superior courts below lacks the requisite locus standi to invoke the Supreme Court's jurisdiction under Article 163(4)(a).

Reasoning

The court noted that the appellant only sought joinder post-judgment during garnishee proceedings, and did not participate in the main suit where compensation was determined. The Court of Appeal affirmed the trial court's finding that the appellant lacked locus standi. The Supreme Court held that it is constrained to decline admission of an appeal by a party who did not litigate the issues before the superior courts below.

Legal principles established

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  • For an appeal as of right to the Supreme Court, the case must involve constitutional interpretation or application in the lower courts.
  • A party must have been a participant in the case from the start to have locus standi for a Supreme Court appeal.
  • The Supreme Court lacks jurisdiction if the Court of Appeal decided issues based on statutes, not the Constitution.
  • A party who did not litigate issues in the lower courts cannot invoke the Supreme Court's jurisdiction under Article 163(4)(a).
  • The Supreme Court will decline to hear an appeal if the appellant did not have standing in the proceedings below.

Court orders

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  1. 1.The applicant's notice of motion dated June 18, 2024 and filed on June 20, 2024 is hereby allowed.
  2. 2.The Petition of Appeal No E021 of 2024 dated May 16, 2024 and filed on May 30, 2024 is hereby struck out for want of jurisdiction.
  3. 3.The sum of Kshs 6000 deposited as security for costs in the appeal herein be refunded to the appellant.
  4. 4.There shall be no order as to costs.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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The appellant's petition of appeal dated May 16, 2024

The court lacked jurisdiction to entertain the appeal as it did not meet the threshold under Article 163(4)(a) of the Constitution.

Costs

There shall be no order as to costs.

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 appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.
p. 4 Jurisdiction of the Supreme Court under Article 163(4)(a)
a person in this context should therefore be a party with locus standi in the matter
p. 5 Locus standi to appeal to the Supreme Court
we hold that this court lacks jurisdiction to entertain the petition of appeal dated May 16, 2024 and filed on May 30, 2024
p. 5 Final order on jurisdiction
The Petition of Appeal No E021 of 2024 dated May 16, 2024 and filed on May 30, 2024 is hereby struck out for want of jurisdiction
p. 5 Disposition of the appeal
There shall be no order as to costs.
p. 6 Costs order

Key timeline

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2024-05-16
Kenya National Highways Authority files Petition of Appeal No E021 of 2024 at the Supreme Court.
2024-06-18
First respondent files notice of motion to strike out the appeal for lack of jurisdiction.
2024-06-20
Notice of motion is filed in court.
Ruling
Supreme Court allows the motion and strikes out the appeal.

Practical implications

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For lawyers

Check jurisdiction before filing Supreme Court appeal

Before filing an appeal under Article 163(4)(a), confirm that the lower courts actually interpreted or applied the Constitution. If the Court of Appeal decided on statutory grounds (e.g., Land Act, Civil Procedure Rules), you risk striking out. Also ensure your client was a party in the original suit, not just a post-judgment intervenor.

For businesses

Participate early in land acquisition cases

If your business is affected by compulsory acquisition, join the case from the start. KeNHA's appeal was struck out because it only appeared after judgment to challenge garnishee proceedings. Without being a party in the main suit, you lose the right to appeal to the Supreme Court on constitutional grounds.

For individuals

You must be a party from the beginning

If you want to challenge a land compensation decision all the way to the Supreme Court, you must be part of the case from the Environment and Land Court. Jumping in later, even if you are a government agency, will not give you the right to appeal directly to the Supreme Court.

Frequently asked questions

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Can I appeal to the Supreme Court of Kenya if my land compensation case didn't involve the Constitution?+

No. The Supreme Court only hears appeals as of right when the Court of Appeal interpreted or applied the Constitution. If the case was decided under land laws or civil procedure, you must first get permission to appeal.

What is locus standi for Supreme Court appeals in Kenya?+

Locus standi means you must have been a party in the original case. If you did not participate in the Environment and Land Court or Court of Appeal, you cannot appeal to the Supreme Court under Article 163(4)(a).

Why was KeNHA's Supreme Court appeal struck out in Kenya?+

KeNHA's appeal was struck out because the lower courts never decided constitutional issues – they used land laws. Also, KeNHA was not a party in the main suit, so it lacked locus standi to appeal directly to the Supreme Court.

How do I know if my case qualifies for a direct appeal to the Supreme Court of Kenya?+

Check if the Court of Appeal judgment involved interpreting the Constitution. If it only applied statutes like the Land Act or Civil Procedure Rules, the Supreme Court will not hear your appeal as of right. You may need to seek leave to appeal.

Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Highways Authority v Five Star Agencies Limited & another", Case Analysis (2024). Petition (Application) E021 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/62/eng@2024-10-25

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