Leah Waithira Njenga v Republic & 3 others
The bottom line
#To appeal to the Supreme Court, the case must have interpreted the Constitution from the start.
What this practically means
#The Supreme Court struck out an appeal because the original case did not involve interpreting the Constitution. The dispute was about land ownership and judicial review, filed under civil procedure rules. Even though the appellants later raised a constitutional issue, the Court said it could not hear the case. The appeal must come from a Court of Appeal decision that actually dealt with constitutional interpretation, not just a late claim.
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 the appeal as a matter of right 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 where the constitutional issue was raised for the first time in the Supplementary Record of Appeal before the Supreme Court, and the courts below did not interpret or apply the Constitution.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the dispute before the High Court and Court of Appeal did not involve the interpretation or application of the Constitution, and the constitutional provision was only raised belatedly in the Supreme Court.
The Court applied the test from Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, holding 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 original judicial review application was filed under the Civil Procedure Rules, not the Constitution, and the High Court was not called upon to interpret any part of the Constitution. The mere mention of Article 40 in the Supplementary Record of Appeal before the Supreme Court does not confer jurisdiction.
Legal principles established
#- An appeal to the Supreme Court as of right must stem from a case that interpreted the Constitution in the lower courts.
- Raising a new constitutional issue in the Supreme Court does not give the Court jurisdiction.
- The mere mention of a constitutional right in pleadings does not make a case about constitutional interpretation.
- Judicial review cases filed under the Civil Procedure Rules are not automatically constitutional cases.
- The Supreme Court will not hear an appeal where the lower courts did not apply or interpret any constitutional provision.
Court orders
#- 1.The Appeal herein is struck off.
- 2.Costs thereof shall be paid by the appellant to the 4th respondent only.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No 269 of 2013
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
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.
The Appeal herein is struck off.
Costs thereof shall be paid by the appellant to the 4th respondent only.
Key timeline
#Practical implications
#Do not delay raising constitutional issues
When drafting pleadings, ensure any constitutional question is raised from the High Court onwards. Do not wait until the Supreme Court to introduce a constitutional argument; the Court will not accept it. If your case is purely about statutory or common law remedies, do not assume Article 163(4)(a) applies.
Land disputes rarely reach Supreme Court
If your land dispute does not involve interpreting the Constitution, the Supreme Court will not hear it on appeal as a right. Focus on resolving issues in the High Court and Court of Appeal under ordinary civil procedure. Plan your litigation strategy accordingly, as the path to the Supreme Court is very narrow.
You cannot add Constitution late
If you are suing over land or other civil matters, do not expect to bring in a constitutional claim for the first time at the Supreme Court. The Court will not take your case just because you mention a constitutional right in the final appeal. Ensure your case is about constitutional interpretation from the start.
Frequently asked questions
#When can I appeal to the Supreme Court in Kenya as a right?+
You can appeal as of right only if your case started in the High Court and involved interpreting or applying the Constitution, and the Court of Appeal also decided on that constitutional issue. A land dispute under civil procedure rules usually does not qualify.
What happens if I raise a new constitutional issue in the Supreme Court Kenya?+
The Supreme Court will likely strike out your appeal for lack of jurisdiction. It cannot hear new constitutional arguments that were not part of the original case in the lower courts, even if they seem important.
Can I appeal to the Supreme Court Kenya for a land dispute?+
Not automatically. You can only appeal if your land case required the court to interpret the Constitution, such as a dispute about property rights under Article 40 that was actually argued and decided on constitutional grounds in the lower courts.
Does mentioning a constitutional right in my pleadings give the Supreme Court jurisdiction in Kenya?+
No. The Court says mere mention of a constitutional provision in pleadings is not enough. The lower courts must have actually interpreted or applied that provision to the facts of the case.
Cite this brief
#Cite this brief
Caselaw, "Leah Waithira Njenga v Republic & 3 others", Case Analysis (2020). Petition 10 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/35/eng@2020-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.