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Supreme CourtDismissedPetition E010 & E009 of 2023 (Consolidated)

Khan v International Commercial Company (K) Ltd

Supreme Court of Kenya
21 December 2023
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
4,698 words in judgment
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·~19 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from routine case management orders while the main case is still ongoing.

What this practically means

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The Supreme Court dismissed John Mwangi Gachau's appeals against National Bank of Kenya. The appeals challenged case management directions from the Employment Court, which had consolidated applications and set hearing dates. The Supreme Court ruled it lacked jurisdiction because the directions were not a final decision on constitutional rights. The main employment case remains pending in the lower court. The Court emphasized that appeals under Article 163(4)(a) must involve substantive constitutional questions that have been fully argued through all lower courts.

Executive summary

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The Supreme Court of Kenya dismissed two consolidated appeals by John Mwangi Gachau against National Bank of Kenya Limited. The appeals challenged the Court of Appeal's decision upholding case management directions issued by the Employment and Labour Relations Court (ELRC) on December 1, 2017 (by Onyango J) and February 14, 2018 (by Makau J). The directions consolidated pending applications, prioritized certain motions, and fixed hearing dates to expedite the main employment dispute, which was still pending. The appellant argued that the directions violated his constitutional rights and that the trial judges were biased. The Supreme Court, however, focused on the preliminary issue of its own jurisdiction under Article 163(4)(a) of the Constitution. Applying its settled jurisprudence, the court held that the appeal did not raise a substantive question of constitutional interpretation or application that had been canvassed through the superior courts. The directions were routine interlocutory case management orders, and the Court of Appeal had only tangentially addressed constitutional issues. The substantive employment case was still pending before the ELRC. Consequently, the Supreme Court lacked jurisdiction to entertain the appeal. Both petitions were dismissed with costs to the respondent, though the court directed that the security for costs deposited by the appellant be refunded.

Questions the Court framed

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

  1. 1.Whether the jurisdiction of this court has been properly invoked under article 163(4)(a) of the Constitution
  2. 2.If the answer to (i) is in the affirmative, (a) whether the trial court properly exercised its discretion; (b) whether the appellant's fundamental rights had been infringed; and (c) What reliefs are available to the appellant?

Key legal issues

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01

Whether the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution was properly invoked.

Holding

The Supreme Court lacked jurisdiction because the appeal arose from interlocutory directions of the ELRC, not a substantive determination of a constitutional issue, and the substantive matter was still pending before the ELRC.

Reasoning

The court applied the test from Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, which requires that an appeal under Article 163(4)(a) must raise a question of constitutional interpretation or application that has been canvassed in the superior courts and progressed through the normal appellate mechanism. The directions issued by Onyango J and Makau J were routine case management directions aimed at expediting the hearing of the main suit. The Court of Appeal only tangentially touched on constitutional issues and found no evidence to support the appellant's claims. The substantive employment dispute was still pending before the ELRC. Therefore, the appeal did not meet the threshold for the Supreme Court's jurisdiction.

p. 11

Legal principles established

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  • The Supreme Court's jurisdiction under Article 163(4)(a) is limited to appeals involving substantive constitutional interpretation or application.
  • Interlocutory orders, such as case management directions, do not qualify for Supreme Court appeal unless they finally determine a constitutional issue.
  • A constitutional issue must have been fully canvassed through the superior courts before reaching the Supreme Court.
  • Routine directions to consolidate cases and fix hearing dates are not constitutional determinations.
  • The Court of Appeal's tangential mention of constitutional rights does not satisfy the jurisdictional threshold.
  • The substantive dispute must be finally resolved in the lower courts before an appeal on constitutional grounds can proceed.

Court orders

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  1. 1.Petition No E010 of 2023 dated March 31, 2023 is hereby dismissed.
  2. 2.Petition No E009 of 2023 dated March 31, 2023 is hereby dismissed.
  3. 3.Costs of the two appeals are hereby awarded to the respondent.
  4. 4.We hereby direct that the sum of Kshs 6,000/- deposited as security for costs in each of the appeals herein be refunded to the appellant.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
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 63 of 2018 and Civil Appeal No 124 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition No E009 of 2023

Relief refused

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Orders setting aside the Court of Appeal's judgements and orders delivered February 17, 2023 in Civil Appeal No 63 of 2018 and Civil Appeal No 124 of 2018

The Supreme Court lacked jurisdiction to entertain the appeal under Article 163(4)(a) of the Constitution.

p. 11

A declaration that all proceedings imposed and impressed upon the appellant by the trial court from February 14, 2018 to June 8, 2018 were null and void

The Supreme Court lacked jurisdiction to entertain the appeal.

p. 11

Orders setting aside the decision of December 1, 2017 of the Employment and Labour Relations Court

The Supreme Court lacked jurisdiction to entertain the appeal.

p. 11

A declaration that the Directions of December 1, 2017 by the Employment and Labour Relations Court are null and void

The Supreme Court lacked jurisdiction to entertain the appeal.

p. 11

A declaration that all proceedings imposed and impressed upon the appellant after the decision of December 1, 2017 are null and void

The Supreme Court lacked jurisdiction to entertain the appeal.

p. 11

An order remitting the application dated August 29, 2017 to the High Court (Human Rights and Constitutional Division) for hearing and determination, prior to the determination of the employment claim

The Supreme Court lacked jurisdiction to entertain the appeal.

p. 11

Costs

Costs of the two appeals are hereby awarded to the respondent.

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.

Having concluded that this court lacks jurisdiction to adjudicate the appeal pursuant to article 163(4)(a) of the Constitution, it consequently follows that the court is unable to assess whether the trial court appropriately exercised its discretion and whether the rights of the appellant were violated.
p. 11 Jurisdiction of the Supreme Court
We have severally held that this court has no jurisdiction to entertain appeals from interlocutory decisions save where the interlocutory decision in question is a substantive determination of a constitutional issue that has been canvassed through the superior courts below.
p. 11 Interlocutory Appeals

Key timeline

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2017-12-01
ELRC issued directions consolidating pending applications.
2018-02-14
ELRC issued further directions prioritizing motions and fixing hearing dates.
2023-03-31
Appellant filed two petitions in the Supreme Court challenging the Court of Appeal's decision.
Judgment date not specified
Supreme Court dismissed both petitions for lack of jurisdiction, with costs to the respondent.

Practical implications

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For lawyers

Jurisdiction trap for interlocutory appeals

When appealing interlocutory orders, ensure the order finally determines a constitutional issue that has been fully argued in all lower courts. Routine case management directions will not open the Supreme Court's door under Article 163(4)(a). File a substantive appeal only after the main case concludes and constitutional questions are properly raised.

For businesses

Employment disputes stay in lower courts

If you are an employer facing an employment dispute, know that case management orders like consolidation or scheduling are not appealable to the Supreme Court until the main case ends. This ruling prevents delays from premature appeals. Focus on resolving the substantive employment matter first.

For individuals

Your constitutional claim must be fully litigated first

If you believe your rights were violated in an employment case, you cannot jump to the Supreme Court over procedural directions. You must first let the Employment Court decide the main case, then appeal to the Court of Appeal on constitutional grounds, and only then may the Supreme Court hear you.

Frequently asked questions

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Can I appeal a case management order to the Supreme Court in Kenya?+

No, not unless that order finally decides a constitutional issue that has been fully argued in all lower courts. Routine directions like consolidating cases or setting hearing dates are not appealable to the Supreme Court under Article 163(4)(a).

What is Article 163(4)(a) of the Kenyan Constitution?+

It allows appeals to the Supreme Court from the Court of Appeal if the case involves the interpretation or application of the Constitution. But the constitutional issue must have been raised and determined in the lower courts first.

How do I challenge an unfair case management direction in Kenya?+

You can challenge it in the Court of Appeal if it involves a constitutional right. But if it is a routine procedural order, you must wait until the main case is decided and then appeal the final judgment.

What happened in John Mwangi Gachau v National Bank of Kenya?+

The Supreme Court dismissed his appeals because the orders he challenged were just case management directions from the Employment Court. The main employment case was still pending, so the Supreme Court had no jurisdiction to hear the appeal.

Later judgments citing this (2)

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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, "Khan v International Commercial Company (K) Ltd", Case Analysis (2023). Petition E010 & E009 of 2023 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/107/eng@2023-12-21

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