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Supreme CourtDismissedApplication 10 of 2017

Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others

Supreme Court of Kenya
11 December 2018
David Kenani MaragaD.K. MaragaPhilomena Mbete MwiluP.M. MwiluSmokin Charles WanjalaS.C. WanjalaJackton Boma OjwangJ.B. OjwangNjoki Susanna NdunguNjoki Ndungu
3,633 words in judgment
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·~15 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals from procedural directions; final determination of constitutional issues is required.

What this practically means

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The Supreme Court of Kenya dismissed an appeal because the Court of Appeal had not yet made a final decision on the constitutional issues. The Court of Appeal had only given a procedural direction to move the case forward. For the Supreme Court to hear a case, the lower court must have fully decided the constitutional question. Since the main appeal was still pending, the Supreme Court lacked jurisdiction. The case was sent back to the Court of Appeal for priority hearing.

Executive summary

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The Supreme Court of Kenya considered preliminary objections challenging its jurisdiction to hear an application and petition arising from an ongoing commercial dispute. The applicant, a liquor distributor, had filed High Court Petition No. 249 of 2016 alleging violation of its proprietary rights under Article 40 of the Constitution. The High Court granted conservatory orders. The respondents appealed to the Court of Appeal (Civil Appeal No. 163 of 2016), which ordered status quo and later, on 30th May 2017, directed that the main appeal proceed without hearing the applicant's contempt application. Aggrieved, the applicant filed the instant application and petition in the Supreme Court under Article 163(4)(a) of the Constitution. The respondents objected, arguing that the Court of Appeal's direction was a procedural order, not a final determination, and that the constitutional issues had not been finally determined by the Court of Appeal. The Supreme Court upheld the preliminary objections. It held that for an appeal to lie as of right under Article 163(4)(a), the constitutional issue must have been canvassed and determined by the Court of Appeal. Since the main appeal was still pending, there was no such determination. The Court distinguished the case from its decision in Joho, where an interlocutory ruling on a constitutional issue had been finally determined. The Court found that the Court of Appeal's direction was a mere procedural direction, not a judgment or determination that finally decided the parties' rights. Consequently, the Supreme Court lacked jurisdiction and dismissed the application, remitting the matter to the Court of Appeal for hearing on a priority basis with no order as to 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 application meets the jurisdictional threshold under Article 163(4) of the Constitution

Key legal issues

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Whether the Supreme Court has jurisdiction under Article 163(4)(a) to entertain an appeal from an interlocutory procedural direction of the Court of Appeal where the main appeal is still pending.

Holding

The Supreme Court lacks jurisdiction because there is no final determination by the Court of Appeal on a constitutional issue; the direction was merely procedural and did not finally determine the rights of the parties.

Reasoning

The Court traced the history of the matter from the High Court, where an interlocutory application for conservatory orders was granted, through the Court of Appeal, which ordered status quo and later directed that the main appeal proceed without hearing the contempt application. The Supreme Court held that the Court of Appeal's direction of 30th May 2017 was a procedural direction, not a judgment or determination that finally decided the parties' rights. Relying on its decisions in Joho, Lawrence Nduttu, and Erad Suppliers, the Court emphasized that for an appeal to lie under Article 163(4)(a), the constitutional issue must have been canvassed and determined by the Court of Appeal. Since the main appeal was still pending, there was no such determination, and the mere allegation of constitutional issues was insufficient to invoke the Court's jurisdiction.

p. 8

Legal principles established

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  • An appeal to the Supreme Court under Article 163(4)(a) requires the constitutional issue to have been finally determined by the Court of Appeal.
  • A procedural direction that does not decide the parties' rights is not a judgment or determination appealable to the Supreme Court.
  • Mere allegations of constitutional issues are insufficient to invoke the Supreme Court's jurisdiction without a final determination.
  • The constitutional issue must have been canvassed from the High Court through the Court of Appeal before reaching the Supreme Court.

Court orders

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  1. 1.The Preliminary Objections of the 2nd, 1st, 4th and 5th Respondents are allowed.
  2. 2.The Preliminary Objection of the Applicant is dismissed.
  3. 3.The matter be remitted to the Court of Appeal and listed down for hearing on priority basis.
  4. 4.No order as to costs.

The bench

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

David Kenani Maraga
majority
Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Appeal No. 163 of 2016
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Application and Petition dated 10th July 2017

The Supreme Court lacks jurisdiction under Article 163(4)(a) as there is no final determination by the Court of Appeal on a constitutional issue.

p. 8

Costs

No order as to costs.

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.

the test that remains, to evaluate the jurisdictional standing of this Court in handling this appeal, is whether the appeal raises a question of constitutional interpretation or application, and whether the same has been canvassed in the Superior Courts and has progressed through the normal appellate mechanism so as to reach this Court by way of an appeal, as contemplated under Article 163(4)(a) of the Constitution
p. 9 Jurisdiction of the Supreme Court under Article 163(4)(a)
we find that what is before us, is a directive in exercise of discretion by the Court of Appeal whose main intent was to give 'procedural direction' as to the conduct of the substantive matter before it
p. 9 Procedural direction vs. judgment
Consequently, it is, our considered opinion that this Court does not have jurisdiction to entertain this application and we lay down our tools.
p. 10 Lack of jurisdiction
The matter be remitted to the Court of Appeal and listed down for hearing on priority basis.
p. 10 Final orders

Key timeline

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2016
Kenia Wine Agencies files High Court Petition No. 249 of 2016 alleging violation of Article 40 rights; High Court grants conservatory orders.
2016
Respondents appeal to the Court of Appeal (Civil Appeal No. 163 of 2016); Court of Appeal orders status quo.
2017-05-30
Court of Appeal directs that the main appeal proceed without hearing the contempt application (procedural direction).
After 2017-05-30
Kenia Wine Agencies files application and petition in the Supreme Court under Article 163(4)(a).
Judgment date
Supreme Court upholds preliminary objections, dismisses application, and remits matter to Court of Appeal for priority hearing.

Practical implications

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For lawyers

Limit appeals to final determinations

When advising clients on Supreme Court appeals, ensure the Court of Appeal has issued a final judgment or ruling that determines the parties' rights on a constitutional issue. Procedural directions or interlocutory orders will not satisfy Article 163(4)(a). File a notice of appeal only after the lower court has conclusively decided the constitutional question.

For businesses

Exhaust all lower court remedies

If you are involved in a commercial dispute with constitutional claims, do not rush to the Supreme Court after a procedural setback. You must first obtain a final decision from the Court of Appeal on the constitutional issue. Premature appeals will be dismissed, causing delays. Work with your lawyers to ensure the case is fully heard at the Court of Appeal before considering a Supreme Court appeal.

For individuals

Understand appeal hierarchy in Kenya

As an individual, if you believe your constitutional rights have been violated, you must pursue your case through the High Court and then the Court of Appeal. Only after the Court of Appeal makes a final decision on the constitutional issue can you appeal to the Supreme Court. Procedural orders, like directions to move the case along, do not count as final decisions. Be patient and let the case run its course.

Frequently asked questions

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Can I appeal a procedural direction from the Court of Appeal to the Supreme Court in Kenya?+

No. The Supreme Court of Kenya has ruled that a procedural direction, such as an order to proceed with the main appeal, is not a final determination of rights. For an appeal to be heard by the Supreme Court, the Court of Appeal must have made a final decision on a constitutional issue. Procedural directions do not qualify.

What is required for the Supreme Court of Kenya to hear a constitutional appeal?+

Under Article 163(4)(a) of the Kenyan Constitution, the Supreme Court can hear an appeal as of right only if the Court of Appeal has finally determined a question involving the interpretation or application of the Constitution. The constitutional issue must have been raised and decided from the High Court through the Court of Appeal.

What happens if I file a premature appeal in the Supreme Court of Kenya?+

The Supreme Court will likely dismiss your appeal for lack of jurisdiction. As seen in Kenia Wine Agencies Limited v Kenya Wine Agencies Limited, the Court will uphold preliminary objections and remit the matter back to the Court of Appeal for hearing. You may also face no order as to costs, but you will have wasted time and resources.

Does the Supreme Court of Kenya have jurisdiction over interlocutory orders from the Court of Appeal?+

Generally, no. The Supreme Court has held that interlocutory orders, such as procedural directions or rulings that do not finally determine the parties' rights, are not appealable under Article 163(4)(a). The only exception is if the interlocutory ruling itself finally determines a constitutional issue, as in the Joho case.

Later judgments citing this (22)

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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, "Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others", Case Analysis (2018). Application 10 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/70/eng@2018-12-11

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