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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 32 of 2018

Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others

Supreme Court of Kenya
23 July 2019
4,976 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals that only mention the Constitution without actually needing it interpreted.

What this practically means

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The Supreme Court dismissed activist Okiya Omtatah's bid to appeal a tender case because the case was about procurement rules, not constitutional interpretation. Simply listing constitutional articles in your appeal papers is not enough. The Court ruled it has no jurisdiction unless the core dispute genuinely requires interpreting or applying the Constitution. Since the main issue was a 15% preference margin in a currency printing tender, the appeal was dismissed with costs.

Executive summary

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The Applicant, Okiya Omtatah Okoiti, sought an order from the Supreme Court to extend time to file an appeal against a Court of Appeal judgment that had set aside a High Court decision nullifying a tender award by the Central Bank of Kenya to De La Rue International Limited for the printing of new currency banknotes. The Applicant had failed to file his appeal within the prescribed 30-day period. The 2nd Respondent raised a preliminary objection, arguing that the Supreme Court lacked jurisdiction because the intended appeal did not involve the interpretation or application of the Constitution under Article 163(4)(a), and that certification under Article 163(4)(b) was required. The Supreme Court framed two issues: whether it had jurisdiction, and if so, whether the Applicant had met the grounds for extension of time. The Court held that it lacked jurisdiction under Article 163(4)(a). It found that the core dispute concerned the tender process and the application of a 15% preferential margin, not the interpretation or application of the Constitution. The Applicant had merely listed constitutional articles without demonstrating how the Court of Appeal misinterpreted or misapplied them. Consequently, the Court dismissed the application for extension of time, upheld the preliminary objection, and ordered the Applicant to bear the costs of all Respondents.

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 entertain the Application.
  2. 2.If we have jurisdiction to determine it, has the Applicant laid enough grounds to enable us extend time within which to file his appeal?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to entertain an application for extension of time to appeal where the intended appeal concerns a tender process.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) where the intended appeal does not involve the interpretation or application of the Constitution, but rather concerns a tender process and the application of a preferential margin, with any constitutional references being peripheral.

Reasoning

The Court analyzed the Applicant's submissions and found that he merely listed constitutional articles without explaining how the Court of Appeal misinterpreted or misapplied them. The core dispute, as identified by the Court of Appeal, was about the applicable law to the tender and the lawfulness of the 15% preference margin. The Court held that for jurisdiction under Article 163(4)(a), the conclusion reached must clearly require constitutional interpretation or application, which was not the case here. The Court applied the principle from Zebedeo John Opore v. IEBC that a party must indicate how the Court of Appeal misinterpreted or misapplied the constitutional provision.

02

Whether the Applicant met the threshold for extension of time to file an appeal.

Holding

The Court did not determine this issue because it found it lacked jurisdiction to entertain the intended appeal.

Reasoning

Having found that the Supreme Court had no jurisdiction under Article 163(4)(a) to hear the intended appeal, the Court declined to consider the merits of the application for extension of time, as doing so would be an exercise in futility.

Legal principles established

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  • Supreme Court jurisdiction under Article 163(4)(a) requires the appeal to genuinely involve constitutional interpretation or application.
  • Merely listing constitutional articles without showing how the Court of Appeal misapplied them is insufficient.
  • A dispute about tender processes and preferential margins does not become a constitutional matter just because the Constitution is mentioned.
  • If the Supreme Court lacks jurisdiction, it cannot grant extensions of time to file an appeal.
  • The party seeking to appeal must clearly demonstrate how the lower court misinterpreted or misapplied a specific constitutional provision.

Court orders

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  1. 1.Prayer No. (2) of the Applicant’s Notice of Motion dated 15th November 2018 seeking to extend time to file a petition of appeal is hereby dismissed.
  2. 2.The Preliminary Objection by the 2nd Respondent, dated 11th December 2018 is upheld.
  3. 3.The costs of all Respondents shall be borne by the Applicant.

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
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeals Nos. 116 and 119 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Extension of time to file a petition of appeal, record of appeal, and a supplementary record of appeal

The Court found it had no jurisdiction under Article 163(4)(a) because the intended appeal did not involve the interpretation or application of the Constitution.

Costs

The costs of all Respondents shall be borne by the Applicant.

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.

For this Court to assume jurisdiction under Article 163(4) (a) of the Constitution, the Applicant must demonstrate how certain Articles of the Constitution were applied or interpreted in the Trial Court as well as the Appellate Court.
p. 10 Jurisdiction of the Supreme Court under Article 163(4)(a)
Prayer No. (2) of the Applicant’s Notice of Motion dated 15th November 2018 seeking to extend time to file a petition of appeal is hereby dismissed.
p. 11 Final order dismissing the application
The Preliminary Objection by the 2nd Respondent, dated 11th December 2018 is upheld.
p. 11 Final order upholding the preliminary objection
The costs of all Respondents shall be borne by the Applicant.
p. 11 Costs order

Key timeline

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2018-11-15
Okiya Omtatah files application seeking extension of time to appeal to the Supreme Court.
2018-12-11
2nd Respondent files Preliminary Objection challenging Supreme Court's jurisdiction.
Judgment date
Supreme Court upholds Preliminary Objection, dismisses extension application, and orders Omtatah to pay costs.

Practical implications

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For lawyers

Draft appeals with jurisdictional precision

When appealing to the Supreme Court under Article 163(4)(a), do not just list constitutional articles. Your submissions must specifically explain how the Court of Appeal misinterpreted or misapplied each constitutional provision. If the core dispute is statutory or contractual, consider whether certification under Article 163(4)(b) is required instead. This case is a strong reminder that jurisdiction is a threshold issue that must be established before any procedural relief, like extension of time, can be granted.

For businesses

Tender disputes stay in lower courts

If your business is involved in a procurement or tender dispute, the Supreme Court will likely not hear an appeal unless the case raises a genuine constitutional question. Simply arguing that a constitutional right was violated will not work if the real issue is about tender rules or preference margins. This means finality in procurement cases may come faster at the Court of Appeal level, reducing prolonged litigation costs for businesses.

For individuals

Know which court can hear your case

If you want to appeal a case to the Supreme Court in Kenya, you must first check whether your case involves interpreting the Constitution. If your dispute is about contracts, tenders, or other non-constitutional issues, the Supreme Court will likely refuse to hear it. Filing in the wrong court wastes time and money, and you may be ordered to pay the other side's legal costs. Always consult a lawyer to determine the correct appeal route.

Frequently asked questions

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Can I appeal a tender case to the Supreme Court in Kenya?+

Only if the case genuinely requires interpreting or applying the Constitution. If the dispute is about procurement rules, preference margins, or contract terms, the Supreme Court will likely refuse jurisdiction. You must show how the Court of Appeal misapplied a specific constitutional provision.

What happens if I miss the appeal deadline in Kenya?+

You can apply for an extension of time, but the court must first have jurisdiction to hear your intended appeal. If the Supreme Court lacks jurisdiction over the main appeal, it will not grant an extension. You risk paying the other side's costs if your application is dismissed.

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

It allows appeals to the Supreme Court from the Court of Appeal only if the case involves the interpretation or application of the Constitution. You must clearly explain how the lower court misinterpreted a constitutional provision. Simply listing articles is not enough.

Can I mention the Constitution to get my case heard by the Supreme Court in Kenya?+

No. The Supreme Court will look at the real substance of your dispute. If the core issue is about tenders, contracts, or other non-constitutional matters, mentioning the Constitution will not create jurisdiction. The constitutional question must be central, not peripheral.

Cite this brief

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Cite this brief

Caselaw, "Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others", Case Analysis (2019). Application 32 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/29/eng@2019-07-23

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