Okiya Omtatah Okoiti v Central Bank of Kenya & 7 others
The bottom line
#Supreme Court cannot hear appeals that only mention the Constitution without actually needing it interpreted.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the Application.
- 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
#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.
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.
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.
Whether the Applicant met the threshold for extension of time to file an appeal.
The Court did not determine this issue because it found it lacked jurisdiction to entertain the intended appeal.
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
#- 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
#- 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.The Preliminary Objection by the 2nd Respondent, dated 11th December 2018 is upheld.
- 3.The costs of all Respondents shall be borne by the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
#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.
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.
The Preliminary Objection by the 2nd Respondent, dated 11th December 2018 is upheld.
The costs of all Respondents shall be borne by the Applicant.
Key timeline
#Practical implications
#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.
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.
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
#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
#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.