Kiliavo Fresh Limited v National Environmental Tribunal & 4 others
The bottom line
#Supreme Court rejects appeal because it was about a statute, not a constitutional question.
What this practically means
#A landowner in Kajiado tried to appeal to the Supreme Court after losing in lower courts. He argued that his constitutional rights were violated, but the real issue was which court to use under the Environmental Management Act. The Supreme Court said that is not a constitutional question, so it had no power to hear the case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant has properly invoked this Court's jurisdiction under Article 163(4)(a) of the Constitution
- 2.Whether the Court of Appeal erred in its decision of 4th April 2025
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the appellant alleges constitutional violations but the courts below decided the matter on statutory interpretation without engaging constitutional interpretation or application.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the appeal does not raise a genuine question of constitutional interpretation or application, even if constitutional provisions are cited. The issue must have been canvassed and determined as a constitutional question through the hierarchy of courts.
The Court reviewed its settled jurisprudence from Lawrence Nduttu, Paul Mungai Kimani, and Gatirau Peter Munya. It found that the core issue in the courts below was the proper avenue of remedy under Section 130 of the EMC Act, not the interpretation or application of Articles 27, 47, 48, or 50 of the Constitution. The Court of Appeal mentioned Article 47 only to note the right to fair administrative action, but did not interpret or apply it as a constitutional question. The appellant failed to demonstrate how the superior courts misdirected themselves on constitutional principles. Therefore, the appeal did not meet the threshold for an appeal as of right under Article 163(4)(a).
Legal principles established
#- For an appeal to the Supreme Court as of right, the constitutional issue must have been raised and decided by the High Court and Court of Appeal.
- Mere mention of a constitutional provision in a court decision does not automatically make the case involve constitutional interpretation.
- The Supreme Court only hears appeals on genuine constitutional interpretation or application, not on statutory interpretation disguised as a constitutional claim.
- The appellant must show how the lower courts misapplied constitutional principles, not just cite them.
- A statutory appeal route must be followed unless exceptional circumstances justify a different path.
Court orders
#- 1.The 1st Respondent's Preliminary Objection dated 3rd June 2025 is hereby upheld.
- 2.Petition of Appeal dated 9th May 2025 and filed on 12th May 2025 is hereby struck out.
- 3.Each party shall bear their own costs.
- 4.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. E446 OF 2024 consolidated with Civil Appeal No. E447 OF 2024
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that appeal under Section 130 EMC Act is not the only way to approach the ELC
The Court lacked jurisdiction to hear the appeal as it did not raise a question of constitutional interpretation or application under Article 163(4)(a).
Declaration that a court cannot determine a similar issue already decided by the same court absent review or rehearing
The Court lacked jurisdiction to hear the appeal as it did not raise a question of constitutional interpretation or application under Article 163(4)(a).
Vacation of the Court of Appeal judgment
The Court lacked jurisdiction to hear the appeal as it did not raise a question of constitutional interpretation or application under Article 163(4)(a).
Setting aside of the ELC ruling and reinstatement of the judicial review motion
The Court lacked jurisdiction to hear the appeal as it did not raise a question of constitutional interpretation or application under Article 163(4)(a).
Costs
Each party shall bear their own costs.
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 Appellant having failed to demonstrate that its appeal raises the interpretation or application of any constitutional issues, it is our finding that the Court is not vested with the requisite jurisdiction to hear and determine the present appeal pursuant to the provisions of Article 163(4)(a) of the Constitution.
it is not granted that whenever the Court of Appeal mentions a provision of the Constitution in its decision, the matter under consideration automatically falls within the ambit of this Court's appellate jurisdiction under Article 163(4)(a) of the Constitution.
the issues that this Court would exercise its jurisdiction over pursuant to Article 163(4)(a) of the Constitution are only issues involving the interpretation or application of the Constitution. These issues must have been identified as involving interpretation or application of the Constitution. They must have been argued in the court of first instance and canvassed through the hierarchy of courts, at the Court of Appeal and finally to this Court.
Key timeline
#Practical implications
#Plead constitutional issues early
When drafting appeals, ensure that any constitutional claim is clearly raised and argued as a distinct issue before the High Court and Court of Appeal. Simply citing a constitutional provision in grounds of appeal is insufficient. If the core dispute is statutory, the Supreme Court will not assume jurisdiction even if the Court of Appeal mentions the Constitution.
Choose the correct appeal route
If you lose a case before a tribunal like the National Environmental Tribunal, check whether the law provides a specific appeal route (e.g., to the Environment and Land Court). Using judicial review instead of the statutory appeal can lead to your case being struck out, wasting time and money. Always follow the procedure set out in the relevant Act.
Know your final appeal options
The Supreme Court only hears appeals on genuine constitutional questions. If your case is about the interpretation of a law (like the Environmental Management Act) and not the Constitution, the Supreme Court will not hear it. To get to the Supreme Court, the constitutional issue must have been the main point argued in the lower courts, not just mentioned.
Frequently asked questions
#How do I appeal to the Supreme Court of Kenya as of right?+
To appeal as of right under Article 163(4)(a), the case must involve a genuine question of constitutional interpretation or application. The issue must have been raised and decided by the High Court and then the Court of Appeal. Simply citing a constitutional provision is not enough.
What is Article 163(4)(a) of the Kenyan Constitution?+
Article 163(4)(a) allows appeals as of right to the Supreme Court from the Court of Appeal in cases involving the interpretation or application of the Constitution. It does not cover appeals on statutory interpretation or other legal issues unless they also raise a constitutional question.
Can I appeal to the Supreme Court if my constitutional rights are violated in Kenya?+
Yes, but only if the violation was the main issue in the lower courts and the courts actually interpreted or applied the Constitution. If the courts decided the case on other grounds (e.g., statutory procedure), the Supreme Court will not hear the appeal even if you mention constitutional rights.
What is the difference between statutory interpretation and constitutional interpretation in Kenya?+
Statutory interpretation is about understanding the meaning of a law passed by Parliament (e.g., the Environmental Management Act). Constitutional interpretation is about understanding the meaning of the Constitution. The Supreme Court only hears appeals on constitutional interpretation, not on statutory interpretation unless it also involves a constitutional question.
Cite this brief
#Cite this brief
Caselaw, "Kiliavo Fresh Limited v National Environmental Tribunal & 4 others", Case Analysis (2026). Petition E024 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/18/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.