Mburu v Republic
The bottom line
#Supreme Court cannot hear appeals that only raise factual issues, not constitutional ones.
What this practically means
#The Supreme Court struck out an appeal because it was about facts and evidence, not constitutional interpretation. The appellant had been convicted for corruption-related offences. He tried to appeal to the Supreme Court by mentioning constitutional rights, but the real issues in the lower courts were about whether the prosecution proved its case. The Court said that simply listing constitutional articles in submissions is not enough to give it jurisdiction.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court possesses jurisdiction to entertain the appeal under Article 163(4)(a) of the Constitution.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal where the core issues in the lower courts were factual and evidential, not constitutional.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the issues in the lower courts were predominantly factual and evidential, and constitutional questions were not distinctly raised as live issues for determination.
The court examined the settled jurisprudence from Lawrence Nduttu & 6000 others Vs Kenya Breweries Limited & Another and Hassan Ali Joho & Another Vs Suleiman Said Shahbal & 2 others, which establishes that for an appeal to lie under Article 163(4)(a), constitutional interpretation or application must have been a distinct and central ground of contestation in the courts below. Upon reviewing the High Court and Court of Appeal judgments, the court found that the core issues were whether the prosecution proved its case beyond reasonable doubt, whether the defence dislodged the prosecution's case, and whether the sentence was excessive. The appellant's references to constitutional rights were incidental to the application of criminal procedure and evidence law, and did not form the primary subject of interpretation by the superior courts. The appellant failed to show that the Court of Appeal was faulted on the basis of its interpretation of the Constitution.
Legal principles established
#- To appeal to the Supreme Court under Article 163(4)(a), the constitutional issue must have been a central, distinct ground in the lower courts.
- Mentioning constitutional articles in submissions without making them the core of the appeal does not give the Supreme Court jurisdiction.
- The Supreme Court will not hear appeals where the main issues in the lower courts were factual and evidential, not constitutional.
- An appellant must show that the Court of Appeal was wrong in its interpretation or application of the Constitution, not just that it made a factual error.
- The Supreme Court strictly limits its jurisdiction under Article 163(4)(a) to cases where constitutional interpretation was genuinely contested.
Court orders
#- 1.The Notice of Preliminary Objection dated 8th July 2025 filed by the respondent is upheld.
- 2.The Petition of Appeal dated 12th September 2025 be and is hereby struck out for want of jurisdiction.
- 3.The sum of Kshs. 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the depositor.
- 4.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Costs
Each party to bear its own costs.
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.
The Notice of Preliminary Objection dated 8th July 2025 filed by the respondent is upheld.
The Petition of Appeal dated 12th September 2025 be and is hereby struck out for want of jurisdiction.
The sum of Kshs. 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the depositor.
Each party to bear its own costs.
for an appeal to lie to this Court under Article 163(4)(a), the issue of constitutional interpretation or application must have been a distinct and central ground of contestation in the superior courts below, and the appellant must be faulting the Court of Appeal on the basis of its interpretation or application of the Constitution.
The mere recitation of constitutional articles in submissions, without their integration as substantive grounds of appeal challenging the constitutional basis of the lower courts' decisions, is insufficient to invoke this Court's jurisdiction under Article 163(4)(a) of the Constitution.
Key timeline
#Practical implications
#Draft appeals with constitutional focus
When appealing to the Supreme Court under Article 163(4)(a), ensure your grounds of appeal directly challenge the Court of Appeal's interpretation or application of the Constitution. Avoid framing issues as factual or evidential disputes. If the lower courts decided on evidence, not constitutional points, the Supreme Court will strike out your appeal.
Know when Supreme Court can hear your case
If your business is involved in a criminal or civil case and you want to appeal to the Supreme Court, you must show that the case involves a genuine constitutional question that was argued in the lower courts. Simply mentioning constitutional rights in your submissions will not be enough. Focus on how the lower courts misinterpreted the Constitution.
Appeals must be about constitutional rights
If you are convicted of a crime and want to appeal to the Supreme Court, your appeal must be about how the lower courts wrongly interpreted the Constitution, not just about whether the evidence was sufficient. The Supreme Court will not hear your case if the real issues were factual, like whether the prosecution proved its case beyond reasonable doubt.
Frequently asked questions
#Can I appeal to the Supreme Court in Kenya if my case was about facts and evidence?+
No. The Supreme Court only hears appeals that involve the interpretation or application of the Constitution. If your case was mainly about whether the evidence was sufficient or whether the sentence was fair, you cannot appeal to the Supreme Court under Article 163(4)(a).
What does Article 163(4)(a) of the Kenyan Constitution require for an appeal to the Supreme Court?+
Article 163(4)(a) requires that the appeal involves the interpretation or application of the Constitution. The constitutional issue must have been a central and distinct ground of contestation in the lower courts. Simply mentioning constitutional articles in your submissions is not enough.
What happens if I file an appeal to the Supreme Court in Kenya without a constitutional issue?+
The Supreme Court will strike out your appeal for lack of jurisdiction. As in this case, the Court will uphold a preliminary objection from the other party, and you may lose the security for costs you deposited. Each party will bear its own costs.
Can I appeal a criminal conviction to the Supreme Court in Kenya if I think the evidence was weak?+
No, unless the weakness in evidence is linked to a constitutional violation that was argued in the lower courts. The Supreme Court will not hear an appeal that is purely about factual findings or the weight of evidence. You must show that the Court of Appeal misinterpreted the Constitution.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abuku & another v Republic (Criminal Appeal E151 of 2022) [2026] KECA 722 (KLR)[2026] KECA 722 (KLR)10 Apr 2026followed
- Miano v Republic (Criminal Appeal E019 of 2024) [2026] KECA 628 (KLR)[2026] KECA 628 (KLR)25 Mar 2026followed
- Wairimu v Republic (Criminal Application E034 of 2024) [2025] KECA 34 (KLR)[2025] KECA 34 (KLR)24 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Mburu v Republic", Case Analysis (2025). Petition E023 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/69/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.