Wamae & 97 others v Barclays Bank of Kenya Limited
The bottom line
#Supreme Court cannot hear an appeal unless lower courts interpreted the Constitution.
What this practically means
#The Supreme Court dismissed an appeal from 105 former KCB employees because the case was about redundancy payments under the Employment Act, not constitutional issues. The Court ruled that it only hears appeals where the Court of Appeal actually interpreted or applied the Constitution. Simply mentioning constitutional articles in the Supreme Court petition does not create jurisdiction. The employees lost their appeal and must pay KCB's legal costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal meets the jurisdictional threshold under article 163(4)(a) of the Constitution.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal that did not involve the interpretation or application of the Constitution in the courts below.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the courts below did not interpret or apply the Constitution. The appeal was dismissed for want of jurisdiction.
The court applied the settled principles from cases like Lawrence Nduttu, which require that the appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. The court found that from the Employment and Labour Relations Court to the Court of Appeal, no constitutional question was pleaded, canvassed, or determined. The only provision interpreted was section 40(1)(g) of the Employment Act. The appellants' introduction of constitutional articles in the Supreme Court petition did not cure this defect.
Legal principles established
#- An appeal under Article 163(4)(a) requires the Court of Appeal to have interpreted or applied the Constitution.
- Merely citing constitutional provisions in a Supreme Court petition does not confer jurisdiction.
- Jurisdiction is determined by what was actually pleaded and decided in the lower courts.
- A preliminary objection on jurisdiction can be raised at any stage of proceedings.
- Costs follow the event; the losing party bears the successful party's costs.
Court orders
#- 1.The preliminary objection dated 2nd December, 2020 is hereby sustained.
- 2.The Petition of Appeal No 19 (E022) of 2020 is hereby dismissed.
- 3.The petitioner shall bear the costs of the respondent.
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 440 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya
Relief refused
#Dismissal of the preliminary objection
The appeal does not meet the jurisdictional threshold under article 163(4)(a) of the Constitution.
Costs
The petitioner shall bear the costs of the respondent.
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.
The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution.
We must remind them that, the mere invocation of articles of the Constitution in the pleading, does not in itself avail those provisions for consideration by this court.
Key timeline
#Practical implications
#Jurisdictional trap for appeals
When appealing to the Supreme Court under Article 163(4)(a), verify that the Court of Appeal actually interpreted the Constitution. If the case is purely statutory, you must seek leave under Article 163(4)(b) for a matter of general public importance. Failure to do so risks dismissal with costs, as happened here.
Employment disputes rarely reach Supreme Court
Employment matters under the Employment Act are statutory, not constitutional. Unless a constitutional question was raised and decided in the Court of Appeal, the Supreme Court will not hear the appeal. This limits avenues for challenging employment decisions, so businesses should focus on resolving disputes at lower levels.
Know your appeal route
If you lose a case about redundancy or other employment rights, you cannot automatically appeal to the Supreme Court. You must first show that the Court of Appeal interpreted the Constitution. Otherwise, the Supreme Court will not hear your case, and you may have to pay the other side's legal costs.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya if my case involves employment law?+
Only if the Court of Appeal interpreted the Constitution. If your case was only about the Employment Act, you need to apply for leave to appeal on a matter of general public importance under Article 163(4)(b).
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court from the Court of Appeal if the case involved the interpretation or application of the Constitution. The Supreme Court recently clarified that merely mentioning the Constitution in your petition is not enough.
Why was the Agnes Wachu Wamae case dismissed by the Supreme Court?+
Because the lower courts only dealt with redundancy payments under the Employment Act, not constitutional issues. The Supreme Court said it lacks jurisdiction unless the Court of Appeal actually interpreted the Constitution.
What happens if I file an appeal to the Supreme Court without jurisdiction?+
The court will dismiss it, and you may have to pay the other side's legal costs. It is important to first confirm that your case meets the constitutional threshold under Article 163(4)(a) or obtain leave under Article 163(4)(b).
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohamed & another v Mwabagala & 4 others (Environment and Land Case E065 of 2025) [2026] KEELC 3539 (KLR)[2026] KEELC 3539 (KLR)5 May 2026
- Akoth (sued as Philip Okoth) v Odongo & 4 others (Civil Appeal 10 of 2021) [2025] KECA 1622 (KLR)[2025] KECA 1622 (KLR)3 Oct 2025followed
- National Land Commission v Tom Ojienda & Associates & 2 others[2024] KESC 16 (KLR)26 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Wamae & 97 others v Barclays Bank of Kenya Limited", Case Analysis (2021). Petition 19 (E022) of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/5/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.