Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtStruck OutPetition (Application) 4 of 2021

United Millers Ltd v Kenya Bureau of Standards & 5 others

Supreme Court of Kenya
16 July 2021
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
3,491 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Supreme Court lacks jurisdiction if lower courts never decided constitutional issues.

What this practically means

#

The Supreme Court struck out an appeal by Krish Commodities Limited against the Kenya Bureau of Standards. The company had challenged the destruction of its imported sugar, but the High Court and Court of Appeal dismissed the case because the company did not first use the dispute resolution process required by the Standards Act. The Supreme Court said it could not hear the appeal because the lower courts never actually decided any constitutional questions—they only ruled on the procedural issue of exhausting other remedies first.

Executive summary

#
The Supreme Court considered an application for conservatory orders or stay of execution pending appeal, filed by Krish Commodities Limited against the Kenya Bureau of Standards and five other respondents. The dispute arose from the 1st respondent's decision to condemn the applicant's imported sugar for destruction after it failed quality tests. The applicant had unsuccessfully challenged this decision through judicial review in the High Court, which dismissed the application for failure to exhaust statutory remedies under the Standards Act and the Fair Administrative Action Act. The Court of Appeal upheld that decision. The applicant then filed a petition invoking the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution, claiming the appeal involved constitutional interpretation and application, particularly Article 47 on fair administrative action. The 1st respondent challenged the Court's jurisdiction, arguing the petition did not raise constitutional interpretation issues. The Supreme Court agreed with the respondent, finding that the lower courts had disposed of the matter on a preliminary jurisdictional objection based on the exhaustion doctrine, without substantively determining any constitutional issues. The Court held that the constitutional issues were 'nipped in the bud' and therefore the appeal did not qualify as an appeal as of right under Article 163(4)(a). Consequently, the Court struck out the petition for want of jurisdiction and dismissed the interlocutory application, ordering the applicant to bear the 1st respondent's costs.

Questions the Court framed

#

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

  1. 1.Whether this Court has jurisdiction under Article 163(4)(a) of the Constitution to hear and determine Petition No. 4 of 2021 and consequently the instant application
  2. 2.Whether the orders sought in the application can issue

Key legal issues

#
01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the lower courts disposed of the matter on a preliminary jurisdictional objection without substantively determining the constitutional issues raised.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) because the constitutional issues were 'nipped in the bud' when the preliminary objection on exhaustion of remedies was upheld; the case did not involve the interpretation or application of the Constitution at the Court of Appeal.

Reasoning

The Court examined the record and found that the High Court and Court of Appeal both determined the matter on the preliminary issue of exhaustion of statutory remedies under the Standards Act and the Fair Administrative Action Act. The constitutional issues under Article 47 were raised but never substantively determined because the courts upheld the objection that the applicant had not exhausted alternative dispute resolution mechanisms. The Supreme Court held that since the lower courts' decisions were based on jurisdiction and not on constitutional interpretation, the appeal did not meet the threshold for an appeal as of right under Article 163(4)(a). The Court cited its precedents in Lawrence Nduttu, Hassan Ali Joho, and Peter Odour Ngoge to reinforce that the appeal must originate from a case where the core issue involved constitutional interpretation or application.

p. 8
02

Whether an interlocutory application for conservatory orders can be maintained when the main petition is incompetent for want of jurisdiction.

Holding

An interlocutory application cannot stand where the main petition is struck out for lack of jurisdiction.

Reasoning

The 1st respondent argued that the petition was incompetent because it did not raise constitutional interpretation or application issues, and therefore the application offended Rule 31(2) of the Supreme Court Rules, 2020, which requires a properly filed petition before an interlocutory application. The Court agreed, finding that since the main petition was struck out for want of jurisdiction, the application for conservatory orders or stay was also dismissed as it had no legal foundation.

p. 8

Legal principles established

#
  • If a court dismisses a case on a preliminary objection about jurisdiction, any constitutional issues raised are 'nipped in the bud' and not decided.
  • An appeal to the Supreme Court under Article 163(4)(a) requires that the Court of Appeal actually interpreted or applied the Constitution.
  • Courts must give statutory dispute resolution bodies the first chance to handle disputes before stepping in.
  • An application for temporary orders cannot stand if the main petition is struck out for lack of jurisdiction.
  • The exhaustion doctrine requires parties to use alternative dispute mechanisms provided by law before going to court.

Court orders

#
  1. 1.The Petition of Appeal No. 4 of 2021 dated 23rd February 2021 and filed on 25th February 2021, is hereby struck out for want of jurisdiction
  2. 2.The Notice of Motion dated 4th March 2021 and filed on 16th March 2021, is hereby dismissed
  3. 3.The Petitioner/applicant shall bear the 1st respondent’s costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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 at Nairobi
Civil Appeal No. 273 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

Conservatory orders or stay of the Court of Appeal judgment pending appeal

The Court lacked jurisdiction to hear the main appeal, so the interlocutory application could not stand.

p. 8

Costs

The Petitioner/applicant shall bear the 1st respondent’s costs.

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.

we find that this Court has no jurisdiction to hear and determine Petition No. 4 of 2021 or the instant application for conservatory or stay orders.
p. 8 Jurisdiction of the Supreme Court
The Petition of Appeal No. 4 of 2021 dated 23rd February 2021 and filed on 25th February 2021, is hereby struck out for want of jurisdiction;
p. 8 Final orders striking out the petition
While issues of constitutional interpretation and application had been raised in the substantive application for Judicial Review, they were nipped in the bud when the preliminary objection was upheld for failure to exhaust the statutory alternative dispute resolution mechanisms.
p. 3 Effect of upholding a preliminary objection on jurisdiction
even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
p. 8 Doctrine of exhaustion of alternative remedies

Key timeline

#
2021-02-23
Krish Commodities filed Petition of Appeal No. 4 of 2021 at the Supreme Court.
2021-03-04
Krish Commodities filed a Notice of Motion for conservatory orders or stay.
2024
Supreme Court struck out the petition for want of jurisdiction and dismissed the application.

Practical implications

#
For lawyers

Check jurisdiction before Supreme Court appeal

Before filing an appeal to the Supreme Court under Article 163(4)(a), verify that the Court of Appeal substantively determined a constitutional interpretation or application issue. If the lower courts disposed of the case on a preliminary objection (like failure to exhaust remedies), the Supreme Court will strike out the appeal. Always assess whether the constitutional issues were actually decided, not just raised.

For businesses

Use statutory dispute bodies first

If your business faces a dispute with a regulator like the Kenya Bureau of Standards, you must first use the dispute resolution process set out in the relevant law (e.g., the Standards Act). Going directly to court for judicial review will likely be dismissed for failing to exhaust those remedies. This applies even if you believe constitutional rights are violated—the court will not decide those issues until you exhaust the statutory process.

For individuals

Exhaust all other options before court

If you have a complaint against a government body, check if there is a specific law that provides a complaint or appeal process. You must use that process first before going to court. If you skip it, the court will likely dismiss your case, and you may have to start over. This applies even if you think your constitutional rights have been violated.

Frequently asked questions

#
Can I appeal to the Supreme Court in Kenya if my case was dismissed on a technicality?+

No, not under Article 163(4)(a). The Supreme Court only hears appeals where the Court of Appeal actually decided a constitutional issue. If your case was dismissed on a preliminary objection (like failing to exhaust other remedies), the constitutional issues were never decided, so the Supreme Court lacks jurisdiction.

What does the exhaustion doctrine mean in Kenya?+

The exhaustion doctrine means you must first use any dispute resolution process provided by law before going to court. For example, if the Standards Act has a complaint procedure, you must use it before filing a judicial review case. Courts will dismiss your case if you skip that step.

What happens if I file a Supreme Court appeal without jurisdiction in Kenya?+

The Supreme Court will strike out your petition for want of jurisdiction. Any applications for temporary orders (like conservatory orders or stay) will also be dismissed. You will likely be ordered to pay the other side's costs.

Can I get a stay of execution while appealing a KEBS decision in Kenya?+

Only if your main appeal is properly before the court. If the court lacks jurisdiction to hear the main appeal, any application for a stay or conservatory orders will be dismissed because it has no legal foundation. You must first establish that the court has jurisdiction.

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "United Millers Ltd v Kenya Bureau of Standards & 5 others", Case Analysis (2021). Petition (Application) 4 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/72/eng@2021-07-16

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