Johana v Secretary, Teachers Service Commission & another
The bottom line
#Supreme Court cannot hear appeals raising new constitutional issues not argued in lower courts.
What this practically means
#The Supreme Court dismissed an appeal from a former teacher because the case was about extending time to file a judicial review application, not about interpreting the Constitution. The teacher tried to raise constitutional violations for the first time at the Supreme Court, but the Court ruled it had no jurisdiction to hear such new issues. The appeal was thrown out, and each side paid its own costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine the appeal, and if so;
- 2.Whether the High Court has jurisdiction to extend the time to file a substantive Judicial Review application;
- 3.Whether the appellant's rights were violated; and
- 4.Whether the appellant is entitled to the reliefs sought.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the constitutional issues were raised for the first time before it and were not canvassed in the courts below.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the constitutional issues were not canvassed before the superior courts below and were raised for the first time before the Supreme Court.
The Court examined the background of the dispute and found that the only issue determined by the High Court and Court of Appeal was the appellant's request for an extension of time to file Judicial Review proceedings. The appellant's allegations of violations of fundamental rights and freedoms under various constitutional articles were not canvassed before the superior courts below and were raised before the Supreme Court for the first time. Applying the principles from Lawrence Nduttu and Rutongot Farm, the Court held that the issue of extension of time does not fall within the scope of Article 163(4)(a) and therefore does not warrant the intervention of the Supreme Court.
Whether the High Court has jurisdiction to extend the time to file a substantive Judicial Review application after leave has been granted.
The Court of Appeal correctly held that the High Court has jurisdiction to extend time for filing a substantive Judicial Review motion, but the Supreme Court did not disturb this finding as it dismissed the appeal for want of jurisdiction.
The Court of Appeal distinguished between an application for extension of time to seek leave to institute a Judicial Review application (which the Law Reform Act strictly limits) and an application to extend time for filing the substantive Motion after leave had been granted (which Order 53 rule 3(1) read with Order 50 Rule 6 of the Civil Procedure Rules empowers the Court to enlarge). The Supreme Court noted this finding but did not rule on it substantively because it lacked jurisdiction.
Legal principles established
#- An appeal to the Supreme Court under Article 163(4)(a) must involve constitutional interpretation or application from the Court of Appeal.
- Constitutional issues raised for the first time at the Supreme Court cannot give it jurisdiction.
- A dispute about extending time for judicial review is not a constitutional matter.
- The Supreme Court must first determine its own jurisdiction before hearing any appeal.
- Each party bears its own costs when an appeal is dismissed for lack of jurisdiction.
- Security for costs deposited for an appeal must be refunded if the appeal is dismissed for want of jurisdiction.
Court orders
#- 1.The Petition of Appeal dated 12th June 2025 and filed on 16th June 2025 is hereby dismissed for want of jurisdiction;
- 2.Each party shall bear its costs of the appeal; and
- 3.We hereby direct that the sum of Kshs. 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellant.
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. E315 of 2024
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Quashing or setting aside the Ruling of the High Court dated 22nd April 2024 and the Court of Appeal Judgment dated 2nd May 2025 and replacing it with an order that the matter proceed to full trial at the High Court through extension of time
The Supreme Court lacked jurisdiction under Article 163(4)(a) as the appeal did not involve the interpretation or application of the Constitution.
Provision of a platform for arbitration
The appeal was dismissed for want of jurisdiction; the Court did not consider the alternative relief.
Costs
Each party shall bear its costs of the appeal
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. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum.
We observe that these allegations of violations of fundamental rights and freedoms were not canvassed before the superior courts below and were raised before this Court for the first time.
the appellant has failed to directly identify specific instances where the High Court and the Court of Appeal erred in the interpretation and application of the Constitution relevant to his case; the appellant's case was based solely on factual issues and the application of statutes including the Law Reform Act, the Civil Procedure Code, and the Civil Procedure Rules.
The Petition of Appeal dated 12th June 2025 and filed on 16th June 2025 is hereby dismissed for want of jurisdiction;
Each party shall bear its costs of the appeal; and
We hereby direct that the sum of Kshs. 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellant.
Key timeline
#Practical implications
#Raise constitutional issues early
Ensure all constitutional arguments are fully canvassed in the High Court and Court of Appeal. Raising them for the first time at the Supreme Court will result in dismissal for lack of jurisdiction. Review your appeal strategy to identify constitutional questions at the earliest stage.
Understand appeal limits
If your dispute involves procedural or statutory issues (like time extensions), do not expect the Supreme Court to hear it unless constitutional interpretation is central. Plan your litigation path accordingly—final appeals on non-constitutional matters end at the Court of Appeal.
File appeals correctly
Before appealing to the Supreme Court, confirm that your case involves a genuine constitutional question that was argued in lower courts. If you only have a complaint about delays or procedural errors, the Supreme Court will not take your case. Seek legal advice early.
Frequently asked questions
#Can I appeal any case to the Supreme Court of Kenya?+
No. Under Article 163(4)(a), you can only appeal as of right if the Court of Appeal case involved interpretation or application of the Constitution. Other appeals require certification by the Court of Appeal or Supreme Court.
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court as of right from the Court of Appeal in cases that involve the interpretation or application of the Constitution. The constitutional issue must have been part of the case in the lower courts.
What happens if I raise new constitutional issues at the Supreme Court in Kenya?+
The Supreme Court will dismiss your appeal for lack of jurisdiction. It cannot hear constitutional arguments that were not first raised and decided by the High Court and Court of Appeal.
How do I extend time for judicial review in Kenya?+
After leave to apply for judicial review is granted, you can apply to the High Court to extend time for filing the substantive motion under Order 50 Rule 6 of the Civil Procedure Rules. The court has discretion, but you must explain any delay.
Cite this brief
#Cite this brief
Caselaw, "Johana v Secretary, Teachers Service Commission & another", Case Analysis (2026). Petition E031 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/13/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.