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Supreme CourtDismissedPetition 13 of 2013

Ngoge t/a OP Ngoge & Associates Advocates & 5379 others v Simoni t/a Namada & Co Advocates & 725 others

Supreme Court of Kenya
25 November 2014
8,619 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals on procedural issues unless they involve constitutional interpretation.

What this practically means

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The Supreme Court dismissed a case from former Kenya Breweries employees because the dispute was about court procedure, not constitutional rights. The Court of Appeal had only decided whether to strike out a notice of appeal. The Supreme Court said it can only hear appeals that genuinely involve interpreting the Constitution, not just any case where someone claims their rights were violated.

Executive summary

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This ruling determined two preliminary objections challenging the Supreme Court's jurisdiction to hear an appeal from the Court of Appeal. The appeal arose from a long-standing representative suit filed in 2000 by former employees of Kenya Breweries Limited. The dispute at the Court of Appeal concerned a procedural application to strike out or withdraw a notice of appeal regarding legal representation in the High Court suit. The Supreme Court upheld the preliminary objections and dismissed the petition. The Court held that it lacked jurisdiction under Article 163(4)(a) because the matter before the Court of Appeal did not involve the interpretation or application of the Constitution; it was a purely procedural issue concerning the striking out of a notice of appeal. The Court reaffirmed its jurisprudence that a mere allegation of constitutional violation in pleadings does not automatically bring an appeal within its jurisdiction under Article 163(4)(a); the appeal must originate from a Court of Appeal case where the issues revolved around constitutional interpretation or application. The Court also held that an advocate representing a client should not be joined as a litigant in the same matter or on appeal, as the advocate benefits from a cover of privilege, though remaining amenable to suit for professional negligence in a separate action. The Court further held that any substantial change to the configuration of parties on appeal creates a fresh matter, not an appeal. The Court dismissed the petition, ordered the High Court to schedule the substantive matter for hearing on a priority basis, and ordered the appellants to bear the costs.

Questions the Court framed

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

  1. 1.whether leave to appeal, as required by Article 163(4)(b) of the Constitution, was necessary
  2. 2.whether the matter in issue is one of constitutional interpretation and/or application, hence falling within the jurisdiction of this Court under Article 163(4)(a) of the Constitution
  3. 3.what is the implication of joinder of an advocate as a party to a suit in which he is representing a party?
  4. 4.does this Court have jurisdiction in this matter?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal under Article 163(4)(a) where the appellant alleges constitutional violations but the matter before the Court of Appeal was purely procedural.

Holding

The Supreme Court lacks jurisdiction because the appeal did not originate from a Court of Appeal case where the issues revolved around the interpretation or application of the Constitution; the matter before the Court of Appeal was a procedural application to strike out a notice of appeal, not a constitutional issue.

Reasoning

The Court applied its earlier decisions in Lawrence Nduttu and Peter Ngoge, holding that it is not the mere allegation in pleadings that clothes an appeal with the attributes of constitutional interpretation or application. The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. Here, the Court of Appeal was exercising its discretion under Rule 81 of the Appellate Jurisdiction Rules to strike out a Notice of Appeal, which involved no constitutional interpretation or application. The appellants' attempt to transmute an ordinary procedural issue into a constitutional one was rejected.

02

Whether an advocate can be joined as a party to an appeal in respect of their conduct in representing a client in the lower court.

Holding

An advocate should not be enjoined as a litigant in the same matter or on appeal in respect of any acts or omissions in the conduct of the cause, as the advocate benefits from a cover of privilege, though remaining amenable to suit for professional negligence or malpractice in a separate action.

Reasoning

The Court reasoned that an advocate's position rests on a purely professional platform and that joining an advocate as a party would be harmful to the practising Bar and the Courts. The Court noted that the appellants' claims raised no issues of professional negligence or malpractice, and even if they did, the Supreme Court would not be the proper forum. The Court emphasized that an advocate is an officer of the Court under Section 55 of the Advocates Act and should be accorded high esteem.

03

Whether the failure to cite the specific constitutional provision conferring jurisdiction is fatal to an appeal.

Holding

The failure to indicate the specific provision of the Constitution or statute conferring jurisdiction is not, in the circumstances of this case, a fatal omission because the Court is aware that it is the appellate jurisdiction being invoked, but it is a vital foundation of all litigation that the enabling provisions of the law ought to be cited.

Reasoning

The Court noted that the appellants did not indicate under which provision of Article 163(4) they sought to move the Court. However, by virtue of Article 159 of the Constitution, the Court considered that the failure was not fatal because it was clear that the appellate jurisdiction was being invoked. The Court qualified this by stating that jurisdiction is an integral element and the enabling provisions ought to be cited.

Legal principles established

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  • Appeals to the Supreme Court under Article 163(4)(a) must originate from a Court of Appeal case that actually interpreted or applied the Constitution.
  • A mere allegation of human rights violations in pleadings does not automatically give the Supreme Court jurisdiction.
  • An advocate cannot be sued or joined as a party in the same case they are handling for a client.
  • Changing the parties significantly on appeal creates a new case, not an appeal, and cannot be heard by the appellate court.
  • Failing to cite the specific constitutional provision granting jurisdiction is not always fatal, but it is a serious omission.
  • Advocates are protected by privilege for their conduct in representing clients, but can still be sued separately for professional negligence.

Court orders

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  1. 1.The preliminary objection by the 5th and 6th respondents filed on the 17th December 2013, and that by the 1st and 2nd respondents, filed on 13th January, 2014 are upheld.
  2. 2.Supreme Court Petition No. 13 of 2013 is dismissed.
  3. 3.The High Court shall schedule the substantive matter pending before it, for hearing on the basis of priority.
  4. 4.The appellants shall bear the cost of this petition.

The bench

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

majority
majority
majority
majority
Njoki Susanna Ndungu
N.S. NjokiSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) and (b) of the Constitution of Kenya, 2010

Relief refused

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Setting aside of the Ruling and Orders of the Court of Appeal dated 19th November, 2013

The Supreme Court lacked jurisdiction to entertain the appeal as it did not involve the interpretation or application of the Constitution under Article 163(4)(a) and no certification of general public importance under Article 163(4)(b) had been obtained.

Direction to the Deputy Registrar of the High Court to supply certified copies of proceedings

The petition was dismissed for lack of jurisdiction.

Payment of legal fees to Mr. Ngoge

The petition was dismissed for lack of jurisdiction.

General damages for violation of fundamental rights

The petition was dismissed for lack of jurisdiction.

Costs

The appellants shall bear the cost of this petition.

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 appellate jurisdiction under Article 163(4)(a)
when an advocate represents his or her client in any matter, his or her position rests on a purely professional platform; and such advocate should not, as a player of a professional role governed by law, be enjoined as litigant, whether in that very matter, or on appeal, in respect of any acts or omissions in the conduct of the cause.
p. 17 Joinder of advocates as parties
The appellants shall bear the cost of this petition.
p. 20 Costs order

Key timeline

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2000
Former Kenya Breweries employees file a representative suit in the High Court.
2013-12-17
5th and 6th respondents file a preliminary objection in the Supreme Court.
2014-01-13
1st and 2nd respondents file a preliminary objection in the Supreme Court.
2014-07-24
Supreme Court delivers ruling upholding both preliminary objections and dismissing Petition No. 13 of 2013.

Practical implications

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For lawyers

Draft appeals with constitutional focus

When appealing to the Supreme Court, ensure the Court of Appeal judgment actually interpreted or applied the Constitution. Do not rely on mere allegations of rights violations. If the lower court decided a procedural issue, the Supreme Court will likely dismiss the appeal for lack of jurisdiction. Cite the specific Article 163(4) provision clearly.

For businesses

Avoid joining lawyers as parties

If you are involved in litigation, do not try to sue the opposing lawyer in the same case. The Supreme Court made clear that advocates cannot be joined as litigants in the matter they are handling. If you believe the lawyer acted negligently, you must file a separate professional negligence case. This protects lawyers from being dragged into cases personally.

For individuals

Know which court can hear your case

If you lose in the Court of Appeal and want to go to the Supreme Court, you must show that the Court of Appeal decided a constitutional question. A procedural ruling—like whether to strike out a notice of appeal—does not qualify. You cannot simply claim your rights were violated to get into the Supreme Court. Check the specific constitutional issue first.

Frequently asked questions

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

No, not unless the procedural issue also involved interpreting or applying the Constitution. The Supreme Court only hears appeals from the Court of Appeal that genuinely revolve around constitutional interpretation. A purely procedural ruling, like striking out a notice of appeal, does not qualify.

Can I sue my lawyer in the same case they are handling for me in Kenya?+

No. The Supreme Court ruled that an advocate cannot be joined as a party in the same case they are handling. If you believe your lawyer was negligent, you must file a separate professional negligence case. This protects lawyers from being personally sued in the middle of ongoing litigation.

What happens if I change the parties on appeal in Kenya?+

If you significantly change who the parties are when you appeal, the court will treat it as a new case, not an appeal. The appellate court cannot hear it. You must keep the same parties as in the lower court for the appeal to proceed properly.

Do I need to cite the specific constitutional provision when appealing to the Supreme Court in Kenya?+

Yes, you should. While the Supreme Court may not automatically dismiss your case for failing to cite the provision, it is a serious omission. Always state which part of Article 163(4) you are relying on—whether (a) or (b)—to avoid complications.

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, "Ngoge t/a OP Ngoge & Associates Advocates & 5379 others v Simoni t/a Namada & Co Advocates & 725 others", Case Analysis (2014). Petition 13 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/8/eng@2014-11-25

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