Simon Gitau Gichuru v Package Insurance Brokers Ltd
The bottom line
#Supreme Court can hear appeals on constitutional issues even if lower courts used ordinary laws.
What this practically means
#The Supreme Court ruled that it can hear an appeal involving constitutional rights, even if the Court of Appeal decided the case using an ordinary employment law instead of the Constitution. This is because the employment law was created to implement the constitutional right to equality. The case involved a former Kenya Airways employee who was dismissed after a spinal tumor diagnosis. The Supreme Court refused to strike out the appeal, saying the constitutional issue was properly raised from the start.
Executive summary
#Key legal issues
#Whether the appeal involves interpretation or application of the Constitution under Article 163(4)(a) so as to be properly before the Supreme Court.
The appeal involves interpretation and application of the Constitution because Article 27 was invoked in the claim from inception, the trial court considered it, and the Court of Appeal's avoidance of it by addressing Section 5(3)(a) of the Employment Act (a normative derivative of Article 27) did not diminish its presence.
The Court examined the proceedings below and found that Article 27 of the Constitution was invoked in the claim before the trial court, which framed it as an issue and determined it. The Court of Appeal, while citing Article 27(4) and Section 5(3)(a) of the Employment Act, addressed the issue through the legislation rather than the Constitution. The Supreme Court held that Section 5(3)(a) is a normative derivative of Article 27, and the Court of Appeal's avoidance of the constitutional provision did not erase its presence in the claim. The Court distinguished this from cases where a constitutional provision was only introduced in the Court of Appeal and addressed in passing, or where there was only a mere reference to a generality of a constitutional provision. The Court concluded that the appeal properly invokes Article 163(4)(a) because the constitutional issue was present from the start and the legislation is a derivative of the Constitution.
Legal principles established
#- A constitutional right does not disappear just because a court applies a law that implements that right.
- An appeal lies to the Supreme Court as of right if a constitutional issue was raised and addressed in the lower courts.
- A law enacted to give effect to a constitutional provision is a 'normative derivative' of that provision.
- The Court of Appeal's avoidance of a constitutional provision does not erase its presence in the case.
- A mere reference to a general constitutional provision is not enough to invoke Supreme Court jurisdiction.
Court orders
#- 1.The Respondent's application for striking out the appeal dated 8th November 2019 is hereby dismissed.
- 2.Costs be in the cause.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Draft appeals to preserve constitutional issues
When appealing to the Supreme Court under Article 163(4)(a), ensure the constitutional issue was raised from the trial court level. Even if the Court of Appeal decides using a statute that implements the constitutional right, the constitutional issue remains alive. Cite the specific constitutional provision and show it was addressed, not just mentioned in passing.
Employment decisions may face constitutional review
If you terminate an employee and the case involves a constitutional right like equality, the Supreme Court may hear the appeal even if the lower courts used employment law. This means employment disputes with constitutional dimensions can reach the highest court, increasing litigation risk and cost. Ensure termination decisions are defensible under both employment law and the Constitution.
Your constitutional rights can be enforced at Supreme Court
If you believe your constitutional rights were violated in an employment dispute, you can appeal to the Supreme Court even if the Court of Appeal decided using ordinary employment law. The key is to raise the constitutional issue from the beginning of your case. This ruling helps ensure that constitutional protections are not bypassed by lower courts using statutes.
Frequently asked questions
#Can I appeal to the Supreme Court in Kenya if my case involves a constitutional issue?+
Yes, under Article 163(4)(a) of the Constitution, you have an automatic right of appeal if a constitutional issue was raised and addressed in the lower courts. This applies even if the Court of Appeal decided the case using a law that implements the constitutional right, like the Employment Act.
What is a normative derivative in Kenyan constitutional law?+
A normative derivative is a law enacted to give effect to a constitutional provision. For example, Section 5(3)(a) of the Employment Act implements Article 27 of the Constitution on equality. The Supreme Court says such laws do not replace the constitutional right; the right remains alive for appeal purposes.
Does the Court of Appeal's avoidance of the Constitution kill my appeal to the Supreme Court in Kenya?+
No. The Supreme Court ruled that if the constitutional issue was raised from the start and the lower courts addressed it (even through a statute), the Court of Appeal's avoidance of the constitutional provision does not erase it. Your appeal can still proceed under Article 163(4)(a).
What happened in the John Mwangi Mwangi v Kenya Airways case?+
A Kenya Airways employee was dismissed after a spinal tumor diagnosis. The lower court found discrimination under Article 27 of the Constitution. The Court of Appeal reversed that, using employment law. The Supreme Court refused to strike out the employee's appeal, saying the constitutional issue was properly raised and can be heard.
Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Obita v Teacher Service Commission & another (Petition E004 of 2025) [2025] KEELRC 1784 (KLR)[2025] KEELRC 1784 (KLR)17 Jun 2025
- Obita v Teacher Service Commission & another (Petition E004 of 2025) [2025] KEELRC 1784 (KLR)[2025] KEELRC 1784 (KLR)17 Jun 2025
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 26 (KLR)16 May 2025
- Mwabili v Samruddha Resources (K) Limited (Cause E031 of 2023) [2024] KEELRC 1958 (KLR)[2024] KEELRC 1958 (KLR)25 Jul 2024applied
- Kung'u v Kenya Electricity Generating Company PLC (Petition E009 of 2022) [2024] KEELRC 1843 (KLR)[2024] KEELRC 1843 (KLR)12 Jul 2024
- Kariri v GE East Africa Services Limited (Cause 139 of 2019) [2023] KEELRC 2719 (KLR)[2023] KEELRC 2719 (KLR)1 Nov 2023applied
- Njuguna & 46 others v Spire Properties (K) Limited & 12 others[2023] KESC 37 (KLR)16 Jun 2023
- Macharia v 680 Operations Limited (Petition 231 of 2019) [2022] KEELRC 4122 (KLR)[2022] KEELRC 4122 (KLR)27 Sept 2022
- Korir v Bunson Travel Services Limited (Cause 160 of 2018) [2022] KEELRC 4134 (KLR)[2022] KEELRC 4134 (KLR)30 Jun 2022
Cite this brief
#Cite this brief
Caselaw, "Simon Gitau Gichuru v Package Insurance Brokers Ltd", Case Analysis (2020). Petition (Application) 36 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/29/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.