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Supreme CourtDismissedPetition 3 of 2012

Nduttu & 6000 others v Kenya Breweries Ltd & another

Supreme Court of Kenya
4 October 2012
Philip Kiptoo TunoiP. K. TunoiSmokin Charles WanjalaS. C. Wanjala
5,912 words in judgment
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The bottom line

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Supreme Court cannot hear appeals that don't involve constitutional interpretation or application.

What this practically means

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The Supreme Court dismissed an appeal from workers who sued Kenya Breweries. The case was about who could represent them in court, not about interpreting the Constitution. The Court explained that it can only hear appeals that involve constitutional questions or matters certified as important to the public. A simple claim that rights were violated is not enough to get to the Supreme Court. The workers also abused the court process by appealing before the lower court finished its work.

Executive summary

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This appeal arose from an interlocutory ruling of the Court of Appeal in a representative suit (HCCC No. 279 of 2003) where the issue was whether the firm of J. Harrison Kinyanjui & Company Advocates had been properly appointed to represent a group of plaintiffs. The High Court (Ang'awa J.) had allowed the firm to come on record, prompting an application for stay by the original advocate, Mr. Ngoge. The Court of Appeal granted a stay of the High Court's ruling pending the hearing and determination of the appeal, but declined to grant other orders sought. Mr. Ngoge appealed to the Supreme Court, alleging violations of ten articles of the Constitution. The Respondents raised a preliminary objection challenging the Court's jurisdiction. The Supreme Court framed five issues for determination, including whether leave to appeal was required, whether the appeal involved constitutional interpretation, and whether the appeal constituted an abuse of process. The Court held that while no leave was required under Article 163(4)(b) because the appeal was purportedly based on Article 163(4)(a), the appeal did not meet the constitutional threshold for an appeal as of right. The Court found that the matter before the Court of Appeal concerned the interpretation of Order 1 Rule 8 of the Civil Procedure Rules regarding legal representation, not the interpretation or application of the Constitution. The Court rejected the argument that a mere allegation of human rights violations automatically brings an appeal within Article 163(4)(a). The Court also found the appeal to be an abuse of process, as the Appellants had obtained the stay they sought from the Court of Appeal but rushed to the Supreme Court before the Court of Appeal could make a final determination. The Supreme Court declined jurisdiction and dismissed the appeal with costs to the Respondents.

Questions the Court framed

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

  1. 1.Were the Appellants required to obtain leave of the Court before filing their Appeal to this Court? If so, from which Court was the leave to be obtained?
  2. 2.Does the Supreme Court have jurisdiction under the Constitution to entertain appeals from interlocutory orders of the Court of Appeal or is such jurisdiction limited to cases which have been substantially determined and finalized by the Court of Appeal?
  3. 3.Is the present appeal from a case involving the interpretation or application of the Constitution as to fall within the ambit of article 163(4)(a) of the Constitution?
  4. 4.Does the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and is the Court required to assume 'supervisory appellate jurisdiction' and inquire into the matter?
  5. 5.Does the present Appeal constitute an abuse of the process of court on grounds that it canvasses matters that are pending for determination before the Court of Appeal hence Sub-Judice?

Key legal issues

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01

Whether the Appellants required leave to appeal to the Supreme Court under Article 163(4)(b).

Holding

No leave was required because the Appellants based their appeal on Article 163(4)(a), not Article 163(4)(b).

Reasoning

The Court examined the Petition of Appeal and submissions and found that the Appellants did not argue that the appeal involved a matter of general public importance under Article 163(4)(b). Instead, they anchored their appeal on Article 163(4)(a), which provides for an appeal as of right in cases involving the interpretation or application of the Constitution. Therefore, no prior certification or leave was needed.

p. 8
02

Whether the present appeal is from a case involving the interpretation or application of the Constitution under Article 163(4)(a).

Holding

No, the appeal does not meet the threshold of Article 163(4)(a) because the matter before the Court of Appeal concerned the interpretation of Order 1 Rule 8 of the Civil Procedure Rules regarding legal representation, not the interpretation or application of the Constitution.

Reasoning

The Court held that the issue before the Court of Appeal was whether Mr. Kinyanjui had properly been entered as legal representative under the Civil Procedure Rules. This was an interlocutory matter about representation, not a constitutional question. The Court distinguished between a case involving constitutional interpretation and a case where constitutional provisions are merely alleged to have been violated. The appeal must originate from a Court of Appeal case where the issues revolved around constitutional interpretation or application.

03

Whether the mere allegation of a violation of human rights gives an automatic right to access the Supreme Court under Article 163(4)(a).

Holding

No, a mere allegation of a violation of human rights does not automatically bring an appeal within the ambit of Article 163(4)(a).

Reasoning

The Court rejected Mr. Ngoge's argument that whenever a citizen alleges a violation of human rights, the Supreme Court automatically assumes jurisdiction. The Court stated that such an approach would defeat the true intent of Article 163(4)(a), which limits appeals to those arising from cases involving the interpretation or application of the Constitution. The appeal must challenge the interpretation or application of the Constitution that the Court of Appeal used to dispose of the matter.

p. 9
04

Whether the appeal constitutes an abuse of the court process.

Holding

Yes, the appeal amounts to a serious abuse of the process of court.

Reasoning

The Court noted that the Appellants had obtained a stay from the Court of Appeal, which was largely in their favour, yet they rushed to the Supreme Court before the Court of Appeal could make a final determination on the issue of legal representation. The Court found this conduct, whether inspired by zeal or advice of counsel, to be a serious abuse of process. The Court also noted that the Petition of Appeal read as if the High Court and Court of Appeal were on trial.

p. 11

Legal principles established

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  • Only two types of appeals reach the Supreme Court: constitutional interpretation cases and certified matters of general public importance.
  • Merely alleging a constitutional violation in your papers does not automatically give you a right to appeal to the Supreme Court.
  • The appeal must originate from a Court of Appeal case where the main issues were about interpreting or applying the Constitution.
  • The words 'leave of the Court' in the Supreme Court Act mean the same as 'certification by the Court' in the Constitution.
  • Rushing to the Supreme Court while issues are still pending in the Court of Appeal is an abuse of the court process.

Court orders

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  1. 1.The Court declines jurisdiction in respect of this Appeal.
  2. 2.The Respondents' costs in this case shall be borne by the Appellants herein.

The bench

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

Philip Kiptoo Tunoi
majority

Wrote the judgment

Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Application No. 291 of 2011
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that both the High Court and Court of Appeal violated articles 10, 19, 20, 25, 27, 29, 47, 48, 50 and 159 of the Constitution

The Court declined jurisdiction as the appeal did not meet the constitutional threshold under Article 163(4)(a).

p. 12

General damages against the Respondents

The Court declined jurisdiction.

p. 12

Order allowing their application of December 23, filed in the Court of Appeal

The Court declined jurisdiction.

p. 12

Directions that Civil Suit number 279 of 2003 should be heard urgently and on a priority basis

The Court declined jurisdiction.

p. 12

Costs

The Respondents' costs in this case shall be borne by the Appellants herein.

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.

In view of the reasons proffered, we decline jurisdiction in respect of this Appeal.
p. 12 Jurisdiction declined
The Respondents' costs in this case shall be borne by the Appellants herein.
p. 12 Costs order
only two types of appeal lie to the Supreme Court from the Court of Appeal. The first type of appeal lies as of right if it is from a case involving the interpretation or application of the Constitution.
p. 8 Types of appeal to Supreme Court
it is not the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application.
p. 10 Threshold for constitutional appeal
The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution.
p. 10 Origin of constitutional appeal
the words 'leave of the Court' in the Supreme Court Act, bear the same legal meaning as 'certification by the Court' which is the phraseology used in the Constitution.
p. 7 Meaning of leave and certification

Key timeline

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2003
Representative suit HCCC No. 279 of 2003 filed against Kenya Breweries Ltd.
Unknown
High Court (Ang'awa J.) allowed J. Harrison Kinyanjui & Company Advocates to represent the plaintiffs.
Unknown
Original advocate Mr. Ngoge appealed to the Court of Appeal, which granted a stay of the High Court ruling.
Unknown
Mr. Ngoge appealed to the Supreme Court before the Court of Appeal made its final decision.
Unknown
Supreme Court declined jurisdiction, dismissed the appeal, and ordered the appellants to pay costs.

Practical implications

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For lawyers

Screen appeals for constitutional basis

Before filing an appeal to the Supreme Court under Article 163(4)(a), verify that the Court of Appeal case actually involved interpreting or applying the Constitution. A mere allegation of a rights violation in pleadings is insufficient. If the core issue is procedural (like legal representation under the Civil Procedure Rules), the Supreme Court will not have jurisdiction. Consider seeking certification under Article 163(4)(b) for matters of general public importance instead.

For businesses

Challenge improper appeals early

If you are sued in a representative suit and the other side tries to appeal an interlocutory ruling to the Supreme Court on non-constitutional grounds, you can challenge jurisdiction immediately. The Supreme Court will dismiss such appeals and award costs against the appellants. This saves time and legal costs. Ensure your legal team monitors whether the appeal truly involves constitutional interpretation before responding substantively.

For individuals

Don't rush to Supreme Court prematurely

If you are involved in a case, do not appeal to the Supreme Court while the Court of Appeal is still deciding your matter. The Supreme Court considers this an abuse of process and will dismiss your case with costs. Also, simply saying your constitutional rights were violated does not guarantee Supreme Court access. The case must have been about the Constitution from the start, not just procedural issues like who represents you.

Frequently asked questions

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Can I appeal to the Supreme Court in Kenya if my case involves a constitutional issue?+

Not automatically. The Supreme Court only hears appeals from the Court of Appeal if the case involved interpreting or applying the Constitution, or if the Court of Appeal certified it as a matter of general public importance. A mere claim that your rights were violated is not enough.

What happens if I appeal to the Supreme Court in Kenya before the Court of Appeal finishes my case?+

The Supreme Court will likely dismiss your appeal as an abuse of process. In Lawrence Nduttu vs Kenya Breweries, the Court found that rushing to the Supreme Court while issues were still pending in the Court of Appeal wasted court time and ordered the appellants to pay costs.

Do I need permission to appeal to the Supreme Court in Kenya?+

It depends. If your appeal is based on constitutional interpretation, you can appeal as of right without permission. But if it is about a matter of general public importance, you need certification from the Court of Appeal or leave from the Supreme Court. The words 'leave' and 'certification' mean the same thing.

Can a representative suit in Kenya be appealed to the Supreme Court on procedural grounds?+

No. In Lawrence Nduttu vs Kenya Breweries, the Supreme Court refused to hear an appeal about who could represent the plaintiffs under the Civil Procedure Rules. Procedural issues like legal representation do not involve constitutional interpretation, so the Supreme Court has no jurisdiction.

Later judgments citing this (25)

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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, "Nduttu & 6000 others v Kenya Breweries Ltd & another", Case Analysis (2012). Petition 3 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2012/9/eng@2012-10-04

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