Ngoge t/a OP Ngoge & Associates Advocates v Ammu Investments Company
The bottom line
#Supreme Court rejects appeal because it did not raise a real constitutional question.
What this practically means
#The Supreme Court dismissed an appeal from an advocate who wanted to enforce a court order for his legal fees. The Court said it only hears appeals that involve genuine constitutional interpretation or application issues that were first raised in the High Court and Court of Appeal. The advocate's case focused on contempt and enforcement, not a constitutional issue. So the appeal was thrown out, and the deposit he paid was refunded.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine the instant appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction under article 163(4)(a) to hear an appeal from a Court of Appeal ruling on an interlocutory application under rule 5(2)(b) of the Court of Appeal Rules.
The Supreme Court lacks jurisdiction unless the appeal falls within two exceptions: (1) the interlocutory application involves a constitutional controversy that was canvassed through the judicial hierarchy, or (2) the order below is unconscionable and violates express constitutional provisions.
The court restated the settled parameters of its appellate jurisdiction under article 163(4)(a), emphasizing that it is not a general court of appeal. It noted that appeals from rule 5(2)(b) applications are generally inadmissible because they prematurely touch on merits not yet adjudged. However, two exceptions exist: where the interlocutory application raises a genuine constitutional controversy that progressed through the lower courts, or where the decision below is unconscionable and violates the Constitution. The appellant failed to bring his case within either exception, as he did not identify specific constitutional provisions in issue or demonstrate that the Court of Appeal's decision was unconstitutional.
Whether the appellant's claim that the Court of Appeal violated article 163(7) of the Constitution by disregarding Supreme Court jurisprudence on contempt of court is sufficient to invoke the Supreme Court's jurisdiction.
A mere allegation, without substantiation, that the Court of Appeal violated article 163(7) is insufficient to invoke the Supreme Court's jurisdiction under article 163(4)(a).
The court found no correlation between the appellant's appeal and article 163(7) of the Constitution. The appellant merely alleged that the Court of Appeal ignored the Supreme Court's decision in Republic v Ahmed Abolfathi Mohammed & Another, but did not demonstrate how this raised a constitutional issue requiring the Supreme Court's intervention. The court reiterated that mere citation of constitutional provisions or allegations of constitutional violations does not bring an appeal within its jurisdiction.
Legal principles established
#- Supreme Court appeal under article 163(4)(a) must involve a genuine constitutional interpretation or application issue first raised in lower courts.
- Mere allegations of constitutional violations or citing constitutional provisions do not establish jurisdiction.
- Appeals from interlocutory applications under rule 5(2)(b) are generally inadmissible unless they raise a constitutional controversy that progressed through the judicial hierarchy.
- An exception exists if the lower court's order is unconscionable and violates express constitutional provisions.
- Alleging that the Court of Appeal disregarded Supreme Court precedent is insufficient without substantiation to invoke jurisdiction.
Court orders
#- 1.The appeal dated December 10, 2024 is hereby dismissed.
- 2.There shall be no order as to costs of the appeal.
- 3.We hereby direct that the sum of Kshs.6,000= deposited as security for costs upon lodging of this appeal, be refunded to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Application No NAI 163 of 2019
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the Court of Appeal ruling of November 22, 2024
The appeal did not meet the constitutional threshold for invocation of this court's appellate mandate under article 163(4)(a).
Committal of the respondent's directors and advocates to civil jail
The appellant failed to establish that the Court of Appeal's dismissal of this prayer involved issues of constitutional application and interpretation.
Costs
There shall be no order as to costs of the appeal.
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 dated December 10, 2024 is hereby dismissed.
There shall be no order as to costs of the appeal.
the instant appeal does not meet the constitutional threshold for invocation of this court's appellate mandate
the appeal must, as of necessity, involve a cogent issue on constitutional interpretation andor application
if the issue in the interlocutory application involves a controversy on the interpretation and application of the Constitution, which was also canvassed before the superior courts below and progressed through the normal judicial chain, this court may rightfully assume jurisdiction
Key timeline
#Practical implications
#Narrow path to Supreme Court appeals
Lawyers must ensure that any intended appeal to the Supreme Court under article 163(4)(a) is grounded in a genuine constitutional interpretation issue that was fully argued from the High Court upward. Simply attaching constitutional provisions or alleging violations will not suffice. For interlocutory orders, meet the two narrow exceptions or risk immediate dismissal.
Plan appeals with constitutional angle
Businesses should understand that Supreme Court jurisdiction is limited. If you anticipate needing to appeal a decision on enforcement of a decree or contempt, ensure your legal team raises constitutional arguments at the earliest stage. Otherwise, you may be locked out of the highest court, as happened here.
High Court often final for disputes
Individuals should know that the Supreme Court is not a general appeal court. It only handles cases with a real constitutional question. If you are involved in a dispute about court orders or contempt, your case may end at the Court of Appeal. Seek legal advice early to preserve any constitutional issues.
Frequently asked questions
#Can I appeal any Court of Appeal decision to the Supreme Court in Kenya?+
No. The Supreme Court only hears appeals that involve a genuine constitutional interpretation or application issue first raised in the High Court and Court of Appeal. Mere allegations of constitutional violations are not enough to get your case heard.
What happens if my appeal to the Supreme Court in Kenya is about an interlocutory order?+
The Supreme Court generally does not hear appeals from interlocutory orders like temporary injunctions. There are two narrow exceptions: if the order raises a constitutional issue that was fully argued in lower courts, or if the order is clearly unconstitutional.
Why was Peter Odiwuor Ngoge's appeal to the Supreme Court in Kenya dismissed?+
The Supreme Court dismissed the appeal because it did not involve a proper constitutional question. The case was about enforcing a decree and contempt, not a constitutional interpretation issue. The Court said it lacked jurisdiction.
Does the Supreme Court in Kenya have to follow its own previous decisions?+
Yes, lower courts must follow Supreme Court precedents. However, in this case, the appellant claimed the Court of Appeal ignored a Supreme Court decision on contempt, but the Supreme Court found the claim was not substantiated enough to create a constitutional issue.
Cite this brief
#Cite this brief
Caselaw, "Ngoge t/a OP Ngoge & Associates Advocates v Ammu Investments Company", Case Analysis (2025). Petition E043 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/34/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.