Ndayara v Republic
The bottom line
#Supreme Court cannot hear appeals that merely re-litigate facts, not constitutional issues.
What this practically means
#The Supreme Court of Kenya struck out Ahmed Salah's appeal against his robbery conviction. He argued his trial was unfair, but the Court found he was just re-arguing facts already decided by lower courts. To appeal to the Supreme Court, you must raise a genuine constitutional question—not just dress up old arguments in constitutional language. This case clarifies that the Supreme Court's jurisdiction is limited to real constitutional issues, not further appeals on facts or evidence.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal raises any question requiring this court to interpret or apply the Constitution so as to invoke the jurisdiction of the Supreme Court under Article 163(4)(a).
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal that, despite being clothed with constitutional language, is essentially a further appeal on matters of fact and law from the Court of Appeal.
The Supreme Court lacks jurisdiction because the appeal does not raise any genuine question of constitutional interpretation or application; it is merely a further appeal on facts and law.
The court noted that the appellant invoked Articles 25, 27, and 47 of the Constitution, but the substance of the appeal was a re-litigation of factual and legal issues already dismissed by the High Court and Court of Appeal, including new matters raised for the first time. Relying on the principle in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another, the court held that mere pleading of constitutional provisions does not confer jurisdiction; the appeal must genuinely involve the interpretation or application of the Constitution. Since the appellant's grievances were about the correctness of the conviction and sentence on factual and procedural grounds, not constitutional interpretation, the court struck out the appeal for want of jurisdiction.
Legal principles established
#- Not all appeals from the Court of Appeal go to the Supreme Court—only those involving genuine constitutional interpretation or application.
- Merely citing constitutional articles in your appeal does not give the Supreme Court jurisdiction.
- The Supreme Court will strike out appeals that are essentially re-litigations of facts and law already decided by lower courts.
- An appeal must genuinely require the Supreme Court to interpret or apply the Constitution, not just repeat earlier arguments.
- The substance of the appeal, not its wording, determines whether the Supreme Court has jurisdiction.
Court orders
#- 1.The Appeal herein is struck out.
- 2.Each party shall bear its own cost.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Criminal Appeal No 125 of 2013
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution; section 15(2) of the Supreme Court Act
Relief refused
#Quashing of conviction and setting aside of sentence
The court lacked jurisdiction to entertain the appeal as it did not raise any question of constitutional interpretation or application.
Remand of the matter back to the trial court for correction of errors
The court lacked jurisdiction to entertain the appeal.
Costs
Each party shall bear its own cost.
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 Appeal herein is struck out.
Each party shall bear its own cost.
Article 163(4)(a) of the Constitution must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court …Towards this end, it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
the petition before us does not raise any question requiring this court to interpret or apply the Constitution in any way to address the appellant's concerns that his conviction and sentence for the reasons reproduced above, ought to be entertained by this court. The appeal is therefore one for striking out for want of jurisdiction.
Key timeline
#Practical implications
#Draft appeals with genuine constitutional issues
When preparing an appeal to the Supreme Court under Article 163(4)(a), ensure the core of your argument requires interpretation or application of the Constitution. Avoid simply repackaging factual or procedural errors as constitutional claims. The court will look at the substance, not the labels. If your client's grievance is about evidence or trial procedure, consider other remedies or accept the finality of lower court decisions.
Limit Supreme Court appeals to constitutional matters
If your business is involved in litigation and considering an appeal to the Supreme Court, understand that only cases involving genuine constitutional interpretation or application qualify. Disputes about contracts, torts, or regulatory compliance that do not raise constitutional questions will be struck out. This saves time and costs—focus on alternative dispute resolution or accept Court of Appeal rulings as final for non-constitutional issues.
Know when you can appeal to the Supreme Court
If you lose a case in the Court of Appeal, you cannot automatically appeal to the Supreme Court. You can only do so if your case involves a real question about interpreting or applying the Constitution. Simply saying your rights were violated is not enough—the core of your case must be about what the Constitution means. For most criminal or civil cases, the Court of Appeal is the final stop.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya if I lose in the Court of Appeal?+
Not automatically. Under Article 163(4)(a), you can only appeal if your case involves a genuine question of interpreting or applying the Constitution. If your appeal is just about facts or evidence, the Supreme Court will strike it out.
What happens if I cite constitutional articles in my appeal to the Supreme Court in Kenya?+
Citing constitutional articles is not enough. The Supreme Court will look at the substance of your appeal. If it is really about re-arguing facts or legal errors from lower courts, the court will strike it out for lack of jurisdiction, as happened in Ahmed Salah v Republic.
Does the Supreme Court of Kenya hear all criminal appeals from the Court of Appeal?+
No. The Supreme Court only hears appeals that raise genuine constitutional interpretation or application issues. Criminal appeals that challenge convictions based on evidence or procedure, without a real constitutional question, cannot be heard by the Supreme Court.
What is the Lawrence Nduttu principle in Kenyan Supreme Court jurisdiction?+
The Lawrence Nduttu principle, cited in this case, states that merely pleading constitutional provisions does not give the Supreme Court jurisdiction. The appeal must genuinely require the court to interpret or apply the Constitution, not just re-litigate facts or law already decided.
Cite this brief
#Cite this brief
Caselaw, "Ndayara v Republic", Case Analysis (2018). Criminal Appeal 11 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/79/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.