Trattoria Limited v Maina & 3 others
The bottom line
#Supreme Court cannot hear a landlord-tenant dispute unless it involves constitutional interpretation.
What this practically means
#The Supreme Court of Kenya dismissed an appeal from a landlord-tenant dispute because the case did not involve interpreting the Constitution. The dispute was about approvals for installing equipment in a building, not constitutional rights. The Court ruled that it only has jurisdiction to hear appeals that raise genuine constitutional questions. Since the Court of Appeal had not addressed any constitutional issue, the Supreme Court had no power to hear the case. The appeal was struck out, and the applicant must pay costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to entertain the appeal.
- 2.Whether the applicant has satisfied the criteria for grant of orders of stay pending appeal.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal arising from a tenant-landlord dispute that did not involve the interpretation or application of the Constitution.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the appeal does not involve the interpretation or application of the Constitution, and the Court of Appeal did not address any constitutional question.
The court examined the record and found that the applicant's case before the superior courts was a tenant-landlord dispute concerning approvals for installation of equipment, not a constitutional matter. The Court of Appeal judgment did not venture to address any constitutional question. Citing Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another, the court held that only appeals involving the interpretation or application of the Constitution can be entertained. Since the appeal did not meet this threshold, the court lacked jurisdiction.
Whether the applicant satisfied the criteria for grant of orders of stay pending appeal.
The applicant did not satisfy the criteria for grant of stay because the court lacked jurisdiction to entertain the appeal, making the appeal unarguable and founded on quicksand.
The court applied the principles from Gatirau Peter Munya v. Dickson Mwenda & 2 others, which require an applicant to show the appeal is arguable, would be rendered nugatory if stay is not granted, and that it is in the public interest. Since the court lacked jurisdiction, the appeal was not arguable and was built on quicksand. The court therefore declined to grant the stay orders.
Legal principles established
#- The Supreme Court only hears appeals under Article 163(4)(a) if the case involves interpreting or applying the Constitution.
- A tenant-landlord dispute about building approvals does not automatically become a constitutional matter.
- If the Court of Appeal did not address a constitutional question, the Supreme Court lacks jurisdiction to hear the appeal.
- The Supreme Court can summarily dismiss a defective petition under Section 18 of the Supreme Court Act.
- An appeal built on a case the court has no power to hear is 'founded on quicksand' and cannot support a stay of execution.
- Costs follow the event: the losing party pays the winner's legal costs.
Court orders
#- 1.The Notice of Motion dated September 9, 2022 is hereby dismissed.
- 2.The petition of appeal dated September 5, 2022 is hereby struck out for want of jurisdiction.
- 3.The applicant shall bear the costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution of the order of Certiorari issued on July 21, 2017 by the High Court
The court lacked jurisdiction to entertain the appeal and the application, and the appeal was founded on quicksand.
Costs
The applicant shall bear the costs of this application.
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.
an appeal lies to this court under article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior courts below this court
we lack the jurisdiction to entertain both the appeal and the application before us. Accordingly, we are not persuaded to grant the orders of stay because the appeal itself is founded on quick sand.
Key timeline
#Practical implications
#Screen appeals for constitutional basis
Before filing a Supreme Court appeal under Article 163(4)(a), verify that the Court of Appeal judgment actually interpreted or applied the Constitution. If the dispute is purely contractual or regulatory, the Supreme Court will strike it out. Use the Lawrence Nduttu precedent to test jurisdiction early and avoid wasted costs.
Landlord-tenant disputes stay in lower courts
If you are in a commercial lease dispute over approvals, permits, or installations, the Supreme Court will not hear your appeal unless a constitutional right is directly at issue. Plan your litigation strategy knowing that the Court of Appeal is the final stop for most property and regulatory conflicts.
Constitutional claims must be raised early
If you believe a landlord-tenant dispute involves your constitutional rights, you must raise that argument in the High Court and Court of Appeal. The Supreme Court will not consider a constitutional issue for the first time on appeal. Ensure your pleadings clearly frame any constitutional question from the start.
Frequently asked questions
#Can I appeal a landlord-tenant dispute to the Supreme Court of Kenya?+
Only if the case involves interpreting or applying the Constitution. A dispute about building approvals or equipment installation is not a constitutional matter, so the Supreme Court will not hear it. The Court of Appeal is the final court for most landlord-tenant cases.
What does Article 163(4)(a) of the Kenyan Constitution mean for appeals?+
It allows appeals to the Supreme Court only from cases that involve the interpretation or application of the Constitution. The constitutional question must have been part of the case in the lower courts. If the Court of Appeal did not address a constitutional issue, the Supreme Court has no jurisdiction.
What happens if I file a Supreme Court appeal without a constitutional question in Kenya?+
The Supreme Court can summarily dismiss your petition under Section 18 of the Supreme Court Act. You will also be ordered to pay the other party's legal costs. The court described such an appeal as 'founded on quicksand' and will not grant any stay of execution.
How do I get a stay of execution pending appeal in the Supreme Court of Kenya?+
You must show that your appeal is arguable, would be rendered nugatory without a stay, and that a stay is in the public interest. But if the Supreme Court lacks jurisdiction to hear your appeal, it will not grant a stay because the appeal itself is not arguable.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kwale International Sugar Company Limited v EPCO Builders Limited & 2 others[2025] KESC 73 (KLR)5 Dec 2025
- Ngao v Kitheka[2025] KESC 1 (KLR)31 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Trattoria Limited v Maina & 3 others", Case Analysis (2022). Petition (Application) E029 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/75/eng@2022-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.