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Supreme CourtDismissedPetition E036 of 2024

Miguna v Muhu Holdings Co. Ltd

Supreme Court of Kenya
23 May 2025
4,036 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from interlocutory stay rulings unless constitutional issues were decided.

What this practically means

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The Supreme Court struck out an appeal because it was about a procedural stay order, not a constitutional question. The Court said its jurisdiction is limited to appeals challenging how the Court of Appeal interpreted or applied the Constitution. Since the lower court only decided whether to pause execution pending appeal, the Supreme Court had no power to hear the case.

Executive summary

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The Supreme Court considered a preliminary objection to its jurisdiction to hear an appeal against an interlocutory ruling of the Court of Appeal. The appellant, a tenant in a long-running landlord-tenant dispute, had challenged the Court of Appeal's refusal to grant a stay of execution pending appeal under rule 5(2)(b) of the Court of Appeal Rules. The respondent argued that the Supreme Court lacked jurisdiction because no constitutional issues were raised before the lower courts, no certification under Article 163(4)(b) had been obtained, and section 15(4) of the Landlord and Tenant Act barred further appeals. The Supreme Court upheld the objection, applying its settled jurisprudence from Lawrence Nduttu, Teachers Service Commission, and Basil Criticos. The Court held that Article 163(4)(a) requires the appeal to challenge the Court of Appeal's interpretation or application of the Constitution in disposing of the matter. The impugned ruling was purely on the exercise of discretion for stay, and the substantive appeals were still pending. The exceptions from Kampala International University did not apply because the Court of Appeal did not substantively determine any constitutional question. The Court struck out the petition for want of jurisdiction, ordered the appellant to bear costs, and directed that the security deposit of Kshs 6,000 be refunded to the appellant.

Questions the Court framed

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

  1. 1.whether this court has jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution

Key legal issues

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Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal against an interlocutory ruling of the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) to hear an appeal against an interlocutory ruling of the Court of Appeal under rule 5(2)(b) where no constitutional issues were determined by the Court of Appeal and the substantive appeals are still pending.

Reasoning

The Supreme Court applied settled jurisprudence from Lawrence Nduttu, Teachers Service Commission, and Basil Criticos that Article 163(4)(a) requires the appeal to challenge the Court of Appeal's interpretation or application of the Constitution in disposing of the matter. The impugned ruling was purely on the exercise of discretion for stay under rule 5(2)(b), and the Court of Appeal did not conclusively decide any constitutional issue. The exceptions from Kampala International University did not apply because the Court of Appeal did not substantively determine a constitutional question or issue orders beyond preserving the substratum of the appeal.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) requires the appeal to challenge the Court of Appeal's interpretation or application of the Constitution.
  • No jurisdiction over interlocutory stay rulings under rule 5(2)(b) unless the Court of Appeal substantively determined a constitutional question.
  • Exception exists if the Court of Appeal went beyond preserving the appeal's substratum and issued orders likely to cause injustice.
  • An appellant must show the Court of Appeal used a constitutional interpretation to dispose of the matter for the Supreme Court to hear the appeal.
  • Costs follow the event; the losing party bears the costs of the preliminary objection.

Court orders

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  1. 1.The grounds of opposition dated November 15, 2024 are hereby sustained
  2. 2.The Petition of Appeal No E036 of 2024 dated October 28, 2024 is hereby struck out
  3. 3.The appellant shall bear the costs
  4. 4.We hereby direct that the sum of Kshs 6,000/= deposited as security for costs herein be refunded to the appellant

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 at Nairobi
Civil Application No Nai E221 of 2024
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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An order that the appeal be allowed with costs and that the ruling rendered against the appellant by the learned justices of the Court of Appeal on the October 25, 2024, at the interlocutory stage, be set aside ex-debito justitiae

The Supreme Court lacked jurisdiction under Article 163(4)(a) as the appeal was against an interlocutory ruling under rule 5(2)(b) and raised no constitutional issues determined by the Court of Appeal

The said eviction orders which were arbitrarily issued against the appellant by the Business Premises Rent Tribunal in Nairobi Tribunal Case No 32 of 2017 be set aside ex-debito justitiae

The Supreme Court lacked jurisdiction to entertain the appeal

General damages be assessed and awarded against the respondent

The Supreme Court lacked jurisdiction to entertain the appeal

Pending the hearing and determination of the Court of Appeal Civil Appeal No E473 of 2024, eviction orders be permanently stayed

The Supreme Court lacked jurisdiction to entertain the appeal

Costs

The appellant shall bear the 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. 8 Supreme Court jurisdiction under Article 163(4)(a)
we find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5(2) (2)(b) of that Court's Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court.
p. 8 Jurisdiction over interlocutory appeals
the appeal before us is premature and does not meet the threshold of article 163(4)(a) of the Constitution. It has to be dismissed for want of jurisdiction.
p. 9 Disposition - lack of jurisdiction

Key timeline

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2024-10-28
Petition of Appeal No E036 of 2024 filed by Peter Ngoge.
2024-11-15
Respondent Jasho Kenya Limited filed grounds of opposition challenging jurisdiction.
2025
Supreme Court struck out the petition for lack of jurisdiction and ordered costs against the appellant.

Practical implications

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For lawyers

Limit appeals to constitutional issues

When challenging an interlocutory ruling under rule 5(2)(b), ensure the Court of Appeal's decision turned on a constitutional interpretation. Otherwise, the Supreme Court will strike out the appeal. Consider filing a substantive appeal on constitutional grounds first, or seek certification under Article 163(4)(b) if the matter involves a matter of general public importance.

For businesses

Finality in landlord-tenant disputes

This ruling reinforces that disputes over stay of execution in landlord-tenant cases end at the Court of Appeal unless a constitutional question is involved. Businesses facing eviction or rent arrears should focus on resolving the substantive issues in the Environment and Land Court and Court of Appeal, as Supreme Court review is extremely limited.

For individuals

Know your appeal rights

If you lose a stay application at the Court of Appeal, you cannot automatically go to the Supreme Court. The Supreme Court only hears appeals on constitutional interpretation. For procedural orders like stays, the Court of Appeal's decision is final. Consult a lawyer to see if your case raises a constitutional issue before attempting an appeal.

Frequently asked questions

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Can I appeal a stay of execution order to the Supreme Court in Kenya?+

Generally, no. The Supreme Court only hears appeals on constitutional interpretation under Article 163(4)(a). A stay order under rule 5(2)(b) is procedural and does not involve constitutional interpretation, so the Supreme Court lacks jurisdiction unless the Court of Appeal substantively decided a constitutional question.

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

Article 163(4)(a) gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal if the case involves the interpretation or application of the Constitution. The appeal must challenge how the Court of Appeal used the Constitution to decide the case.

How does the Supreme Court determine jurisdiction in Kenya?+

The Supreme Court examines whether the appeal originates from a Court of Appeal decision that interpreted or applied the Constitution. If the lower court only decided procedural matters like stay of execution, the Supreme Court will strike out the appeal for lack of jurisdiction.

What is rule 5(2)(b) of the Court of Appeal Rules in Kenya?+

Rule 5(2)(b) allows the Court of Appeal to grant a stay of execution or injunction pending appeal. It is a discretionary power to preserve the subject matter of the appeal. Decisions under this rule are interlocutory and do not involve constitutional interpretation.

Cite this brief

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Cite this brief

Caselaw, "Miguna v Muhu Holdings Co. Ltd", Case Analysis (2025). Petition E036 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/29/eng@2025-05-23

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