Francis Simiyu Tome v Bungoma County Assembly Service Board (CASB) & 2 others
The bottom line
#The Court of Appeal refused to send a Bungoma employment dispute to the Supreme Court, ruling the issues were personal to the applicant and already settled.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to appeal as of right pursuant to Article 163(4)(a) of the Constitution
- 2.Whether the applicant has demonstrated sufficient grounds to warrant certifying that the application raises matters of general public importance under Article 163(4)(b)
Key legal issues
#Whether the Court of Appeal can grant leave under Article 163(4)(a)
It cannot; that jurisdiction is exclusively the Supreme Court's.
The court held that determining whether an appeal involves interpretation and application of the Constitution, and thus merits the Supreme Court's attention, is a matter for the Supreme Court itself. The Court of Appeal declined to say more, disposing of the first issue summarily.
Whether the proposed questions raise matters of general public importance under Article 163(4)(b)
They do not; the dispute concerned the applicant's private right to remedies under the Employment Act, dependent on peculiar facts and settled law.
Applying the Steyn and Awendo criteria, the court found the questions on reinstatement and exemplary damages were already settled by numerous Court of Appeal and Supreme Court authorities, left no lacuna or uncertainty, and were personal to the applicant. Constitutional values invoked in submissions cannot, without more, convert an ordinary discretionary exercise into a matter of general public importance.
Legal principles established
#- The Court of Appeal has no jurisdiction to certify or grant leave under Article 163(4)(a); that jurisdiction lies with the Supreme Court.
- For certification under Article 163(4)(b), the issue must transcend the circumstances of the particular case and bear on the public interest; matters turning on specific facts or settled law do not qualify.
- Mere invocation of constitutional values in submissions does not transform an ordinary exercise of judicial discretion into a matter of general public importance.
Court orders
#- 1.The application dated 21st July 2025 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. E115 of 2024
- Jurisdiction invoked
- Articles 163(4)(a) and 163(4)(b) of the Constitution; section 15 of the Supreme Court Act; Rule 36 of the Court of Appeal Rules
Relief refused
#Certification under Article 163(4)(b) and leave to appeal to the Supreme Court
The proposed questions turn on the peculiar facts of the case and on law already settled; they do not transcend the parties' interests
Leave to appeal as of right under Article 163(4)(a)
Jurisdiction to determine that an appeal involves interpretation and application of the Constitution lies with the Supreme Court, not the Court of Appeal
Costs
The application dated 21st July 2025 is dismissed with costs to the respondents.
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 jurisdiction under Article 163(4)(a) of the Constitution that an appeal heard and determined by this Court involves the interpretation and application of the Constitution and merits the attention of the Supreme Court lies with the Supreme Court, and not this Court.
for a case to be certified as one of general public importance, the applicant must show that the issue to be canvassed on appeal is one whose determination will transcend the circumstances of the particular case, and has a significant bearing on the public interest
the mere invocation of constitutionally values in submissions, does not, without more transform an ordinary exercise of discretion into a matter of general public importance.
The upshot of the above is that the application dated 21st July 2025 is dismissed with costs to the respondents.
Issues in the judgment
#Bench listing gives 'S RADIDO' while the signature block reads 'RADIDO S. OKIYO'; the same judge appears under two renderings.
The quoted certification test ends mid-sentence with an incomplete clause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Simiyu Tome v Bungoma County Assembly Service Board (CASB) & 2 others", Case Analysis (2026). Civil Application E128 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2083/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.