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Supreme CourtStruck OutPetition (Application) E038 of 2024

Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others

Supreme Court of Kenya
21 March 2025
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
1,843 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Supreme Court strikes out land appeal because it lacked a constitutional question.

What this practically means

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The Supreme Court only has the power to hear appeals that involve interpreting the Constitution. In this case, a woman tried to appeal a land ownership dispute to the Supreme Court. However, the lower courts had only dealt with issues like adverse possession and land ownership, not constitutional questions. Therefore, the Supreme Court struck out the appeal, meaning it refused to hear it. The earlier decisions of the Magistrate's Court, High Court, and Court of Appeal stand. The appellant also has to pay the legal costs.

Executive summary

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This was an application by the respondent to strike out the appellant's petition of appeal for want of jurisdiction. The appellant had appealed to the Supreme Court under Article 163(4)(a) of the Constitution, challenging decisions of the Magistrate's Court, High Court, and Court of Appeal regarding ownership of four parcels of land in Kajiado. The core issues in the lower courts concerned adverse possession, limitation of actions, and whether the appellant was a bona fide purchaser for value. The Supreme Court, applying its settled principles from Kimani v. Attorney-General, held that the appeal did not involve any question of constitutional interpretation or application. The Court noted that the issues raised were purely about land ownership and had been determined on their merits by the lower courts, with concurrent findings of fact. The Court emphasized that for jurisdiction under Article 163(4)(a), constitutional issues must have been raised and determined in the High Court first, then on appeal at the Court of Appeal. Since no constitutional question was ever raised or determined below, the Court lacked jurisdiction. The Court allowed the respondent's application, struck out the petition of appeal, and ordered the appellant to bear costs.

Questions the Court framed

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

  1. 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear and determine the appeal.

Key legal issues

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Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal that raises issues of adverse possession and limitation of actions, but where no constitutional interpretation or application was raised or determined in the lower courts.

Holding

The Supreme Court lacks jurisdiction because the issues raised in the lower courts related to ownership of land and adverse possession, not constitutional interpretation or application. The appeal was struck out.

Reasoning

The Court reviewed the history of the matter from the Magistrate's Court through the High Court and Court of Appeal, noting that all issues concerned ownership of land, adverse possession, and limitation of actions under the Limitations of Actions Act. No constitutional question was raised or determined in any of the lower courts. Applying the principles from Kimani v. Attorney-General, the Court found that the appeal did not meet the threshold for jurisdiction under Article 163(4)(a). The Court emphasized that it cannot be the first point of call to ventilate constitutional issues, and that challenges to concurrent findings of fact do not invoke its jurisdiction.

p. 4

Legal principles established

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  • Constitutional issues must be raised and determined in the High Court and Court of Appeal before the Supreme Court can hear an appeal.
  • A mere allegation of constitutional violation does not invoke the Supreme Court's jurisdiction; the appeal must involve actual constitutional interpretation or application.
  • Challenges to concurrent findings of fact by lower courts do not fall within the Supreme Court's jurisdiction under Article 163(4)(a).
  • The Supreme Court cannot be the first forum to raise constitutional issues; they must be part of the case from the trial court.
  • The Supreme Court will strike out appeals that do not meet the constitutional threshold for jurisdiction.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 27th January 2025 and filed on 3rd February 2025 is hereby allowed as prayed.
  2. 2.The Petition of Appeal dated 14th November 2024 and filed on 2nd December 2024 is hereby struck out.
  3. 3.The appellant shall bear the costs of the appeal.

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

Wrote the judgment

Mohammed Khadhar Ibrahim
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
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

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.

From the long history of the matter set out above, there is clearly no live controversy relating to constitutional interpretation or application. The issues related to ownership of the suit premises which have substantively been determined from the trial court, the High Court, then mandated to hear environment and land matters, and later at the Court of Appeal. In the circumstances, we lack jurisdiction to delve into the issues now before us and we must therefore down our judicial tools.
p. 4 Jurisdiction under Article 163(4)(a)
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
p. 3 Jurisdiction under Article 163(4)(a)

Key timeline

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Before 2024
Magistrate's Court determines ownership of four parcels of land in Kajiado
Before 2024
High Court hears and determines appeal on land ownership
Before 2024
Court of Appeal hears and determines appeal on land ownership
2024-12-02
Appellant files Petition of Appeal at the Supreme Court
2025-02-03
Respondent files application to strike out appeal for lack of jurisdiction
2025
Supreme Court strikes out appeal and orders appellant to pay costs

Practical implications

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For lawyers

Strict rules for Supreme Court appeals

This judgment reinforces that the Supreme Court will only hear appeals involving genuine constitutional interpretation or application. Lawyers must ensure constitutional issues are raised and determined in the High Court and Court of Appeal first. Simply citing constitutional provisions or alleging violations is insufficient. Appeals based solely on factual disputes or land ownership issues will be struck out. When drafting appeals, clearly identify the constitutional question and show it was litigated from the trial court.

For businesses

Land disputes end at Court of Appeal

Businesses involved in land ownership disputes should note that the Supreme Court will not hear such cases unless they involve constitutional interpretation. The Court of Appeal is the highest court for most land matters. To preserve a potential Supreme Court appeal, businesses must raise constitutional issues from the trial court stage. Otherwise, the Supreme Court will strike out the appeal, and the lower court decisions stand. This saves time and costs by focusing on the appropriate forum.

For individuals

Supreme Court not an option for most land cases

If you are involved in a land ownership dispute, understand that the Supreme Court will only hear your case if it involves interpreting the Constitution. For most land cases, the Court of Appeal is the final court. To have a chance at the Supreme Court, you must raise constitutional issues at the very beginning of your case, in the trial court. Otherwise, your appeal will be struck out, and you may have to pay costs.

Frequently asked questions

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Can I appeal a land dispute to the Supreme Court in Kenya?+

Generally, no. The Supreme Court only hears appeals that involve interpreting the Constitution. Land ownership disputes, like adverse possession, do not qualify unless a constitutional question was raised and decided in the lower courts. The Court of Appeal is usually the final court for land matters.

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

Article 163(4)(a) allows appeals to the Supreme Court from the Court of Appeal if the case involves the interpretation or application of the Constitution. The constitutional issue must have been raised and determined in the High Court and Court of Appeal first.

What happens if my Supreme Court appeal lacks a constitutional issue?+

The Supreme Court will strike out your appeal for lack of jurisdiction. This means it will not hear the case, and the lower court decisions remain final. You may also be ordered to pay the other party's legal costs.

How can I ensure my case reaches the Supreme Court in Kenya?+

You must raise a genuine constitutional issue from the start of your case in the trial court. The issue must be about interpreting or applying the Constitution, not just a factual dispute. It must then be determined by the High Court and Court of Appeal before the Supreme Court can hear it.

Later judgments citing this (25)

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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, "Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others", Case Analysis (2025). Petition (Application) E038 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/9/eng@2025-03-21

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