Wainaina & another (As Administrators of the Estate of Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others
The bottom line
#Supreme Court dismisses appeal because petitioner failed to specify the correct constitutional basis for jurisdiction.
What this practically means
#The Supreme Court dismissed an appeal in a family succession dispute because the person appealing did not state which part of the Constitution gave the court power to hear the case. The court said this mistake is not a minor technicality that can be forgiven. The appeal was about a private inheritance matter, not a constitutional issue, so the petitioner needed permission from the Court of Appeal first, which they did not get.
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 to entertain the appeal under Article 163(4)(a) as a matter involving interpretation or application of the Constitution.
- 2.Whether the appeal falls under Article 163(4)(b) requiring certification of general public importance, which the petitioners failed to obtain.
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal under Article 163(4)(a) when the petitioner fails to indicate the constitutional provision invoked.
The Supreme Court lacks jurisdiction because the petitioner must specify the constitutional or statutory provision relied upon; failure to do so is fatal.
The court noted that the petitioner's memorandum of appeal did not indicate under which constitutional provision jurisdiction was invoked. Citing Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, the court held that such omission is not a procedural technicality curable under Article 159. The court cannot speculate on the appropriate provision. Since the appeal did not involve constitutional interpretation or application, and no certification was sought under Article 163(4)(b), the court dismissed the petition for want of jurisdiction.
Whether the appeal falls under Article 163(4)(b) requiring certification of general public importance.
The appeal falls under Article 163(4)(b) because it is a private succession matter not involving constitutional interpretation or application, and the petitioners failed to obtain certification from the Court of Appeal.
The 1st respondent argued that the matter is a private succession cause involving relatives, and no constitutional issues were raised in the High Court or Court of Appeal. The court agreed, noting that the petitioners did not seek certification from the Court of Appeal as required by Article 163(4)(b) and Rule 24(1) of the Supreme Court Rules. Without such certification, the Supreme Court lacks jurisdiction.
Legal principles established
#- A litigant must clearly state the constitutional or statutory provision under which they appeal to the Supreme Court.
- Failing to invoke the correct provision is a fatal error, not a minor procedural mistake curable under Article 159.
- The Supreme Court cannot guess which provision a party intended to rely on; the party must specify it.
- An appeal that does not involve constitutional interpretation or application falls under Article 163(4)(b) and requires certification from the Court of Appeal.
- Without certification of general public importance, the Supreme Court lacks jurisdiction to hear a private succession appeal.
Court orders
#- 1.The Preliminary Objection dated 30th of May 2020 is allowed.
- 2.The Petitioner’s 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 at Nairobi
- Civil Appeal No. 30 of 2005
- Jurisdiction invoked
- Article 163(4)(a) and (b) of the Constitution
Relief refused
#Appeal against the Court of Appeal decision
The Supreme Court lacked jurisdiction because the petitioners failed to invoke the correct constitutional provision and did not seek certification of general public importance.
Costs
The Petitioner’s 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.
In our view, the principles in the above cases still prevail and we dismiss the petition for want of jurisdiction.
a litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution.
This Court is being called upon to hold that, because certification, was not sought by the intending appellant, then it must follow that the said appellant, is invoking the Court’s jurisdiction as of right, under Article 163 (4) (a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do
The Preliminary Objection dated 30th of May 2020 is allowed.
The Petitioner’s shall bear the costs of this application.
Key timeline
#Practical implications
#Draft precise appeal grounds
When filing an appeal to the Supreme Court, always explicitly cite the exact constitutional or statutory provision (e.g., Article 163(4)(a) or (b)). Do not rely on Article 159 to cure omissions. Also, for private succession matters, obtain certification from the Court of Appeal under Article 163(4)(b) before approaching the Supreme Court.
Follow strict appeal rules
If your business is involved in a dispute that reaches the Supreme Court, ensure your legal team specifies the correct jurisdictional basis in the memorandum of appeal. Failure to do so will result in immediate dismissal, wasting time and costs. This is especially important in commercial cases that do not involve constitutional interpretation.
Get permission before Supreme Court appeal
If you want to appeal a Court of Appeal decision in a personal matter like inheritance, you usually need the Court of Appeal to certify that your case raises a matter of general public importance. Without that certificate, the Supreme Court will not hear your case. Always ask your lawyer about this requirement.
Frequently asked questions
#Can I appeal to the Supreme Court in Kenya without stating the constitutional basis?+
No. The Supreme Court requires you to specify which part of the Constitution gives it jurisdiction. If you do not, the court will dismiss your appeal. This is not a minor mistake that can be fixed later.
What is certification of general public importance for Supreme Court appeals in Kenya?+
For most appeals from the Court of Appeal, you must first get a certificate from that court stating your case involves a matter of general public importance. Without this certificate, the Supreme Court lacks jurisdiction to hear your appeal.
Does Article 159 of the Kenyan Constitution cure procedural errors in Supreme Court appeals?+
No. The Supreme Court has ruled that failing to invoke the correct constitutional provision is not a procedural technicality that can be cured under Article 159. You must get the jurisdictional basis right from the start.
Can I appeal a family succession case to the Supreme Court in Kenya?+
Yes, but only if the Court of Appeal certifies that your case raises a matter of general public importance. Private succession disputes usually do not involve constitutional interpretation, so you need that certificate to proceed.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinuthia (Suing as the Legal/Personal Representative of the Estate of Loise Gachiku Kinuthia (Deceased)) v Rugiri & 3 others[2026] KESC 35 (KLR)15 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Wainaina & another (As Administrators of the Estate of Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & Njenga (As Administrators of the Estate of Elizabeth Wanjiru Njenga -Deceased) & 3 others", Case Analysis (2020). Petition 19 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/28/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.