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Supreme CourtStruck OutPetition E006 of 2024· [2025] KESC 1 (KLR)

Ngao v Kitheka

Supreme Court of Kenya
31 January 2025
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
2,213 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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Appeals to the Supreme Court must involve constitutional interpretation from the lower courts, not just at the final stage.

What this practically means

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John Mutua Mwanzia appealed to the Supreme Court after losing a land dispute in the lower courts. He argued that his constitutional rights to property and a fair hearing were violated. However, the Supreme Court found that the lower courts had decided the case based on evidence of a trust, not on constitutional questions. Since the appeal did not involve the interpretation or application of the Constitution from the start, the Supreme Court had no power to hear it. The appeal was struck out, and Mr. Mwanzia must pay the costs.

Executive summary

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This was an appeal from the Court of Appeal's judgment affirming a decision of the Environment and Land Court (ELC), which had upheld a trial magistrate's finding that the appellant held land in trust for his brother, the respondent. The appellant, John Mutua Mwanzia, sought to invoke the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution, arguing that his constitutional rights to property and a fair hearing under Articles 40 and 50 had been violated. The respondent raised a preliminary objection, contending that the Supreme Court lacked jurisdiction because the dispute at the lower courts was purely factual and did not involve the interpretation or application of the Constitution. The Supreme Court upheld the preliminary objection. It found that the central issue in all three lower courts was whether a constructive trust existed, which was determined on the basis of evidence and factual analysis. None of the judgments from the lower courts mentioned any constitutional provision. The Court held that the appellant's constitutional arguments were raised for the first time before the Supreme Court and did not arise from the Court of Appeal's decision. Applying its precedents, the Court concluded that the appeal did not meet the strictures of Article 163(4)(a) and struck it out for want of jurisdiction, with costs to the respondent. The Court also ordered the refund of the security for costs deposited by the appellant.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an appeal under Article 163(4)(a) of the Constitution when the dispute at the lower courts was purely factual and did not involve the interpretation or application of the Constitution.

Holding

The Supreme Court lacks jurisdiction because the appeal does not raise a question of constitutional interpretation or application; the lower courts' decisions were based on factual findings regarding a constructive trust, and the appellant's constitutional arguments were raised for the first time before the Supreme Court.

Reasoning

The Court examined the genesis of the dispute, which was a claim of trespass and a counterclaim of a constructive trust over land. The trial court, the ELC, and the Court of Appeal all determined the matter based on evidence of common intention, joint payment, and occupation. None of the judgments from the lower courts mentioned any constitutional provision. The appellant's attempt to frame the appeal as involving Articles 25(c), 40, and 50 of the Constitution was deemed an inappropriate mutation of the case. The Court applied the principles from Wanga vs. Republic and Gatirau Peter Munya vs. Dickson Mwenda Kithinji, holding that the appeal did not meet the strictures of Article 163(4)(a).

p. 4

Legal principles established

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  • The Supreme Court only hears appeals that involve a question of constitutional interpretation or application from the Court of Appeal.
  • If lower courts decide a case on factual grounds, the Supreme Court cannot hear an appeal even if constitutional rights are later claimed.
  • An appellant cannot change the nature of the case by raising constitutional issues for the first time at the Supreme Court.
  • The appeal must originate from a decision of the Court of Appeal where a constitutional question was at play.
  • The Supreme Court will strike out appeals that do not meet the strict requirements of Article 163(4)(a) of the Constitution.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 28th May 2024 is hereby upheld.
  2. 2.The Petition dated 6th March, 2024 is hereby struck out for want of jurisdiction with costs to the respondent.
  3. 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 depositor.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 50
  • Supreme Court Act, Cap 9BSection 15(2)
  • Supreme Court Rules, 2020Rule 33
  • Registered Land Act (repealed)Section 26

Cases cited (9)

  • Trattoria Limited vs. Maina & 3 others
    [2022] KESC 75 (KLR)
  • Megvel Cartons Limited vs. Diesel Care Limited & 2 others
    [2023] KESC 24 (KLR)
  • Wanga vs. Republic
    [2024] KESC 38 (KLR)
  • Lawrence Nduttu & 6000 Others vs. Kenya Breweries Ltd & Another
    SC Petition No. 3 of 2012; [2012] eKLR
  • Samuel Kamau Macharia and Another vs. Kenya Commercial Bank and 2 Others
    SC Application No. 2 of 2011; [2012] eKLR
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
    SC Petition No. 2 of 2014; [2014] eKLR
  • Zebedeo John Opore vs. Independent Electoral and Boundaries Commission & 2 Others
    [2018] eKLR
  • Gladys Wanjiru Munyi vs. Diana Wanjiru Munyi
    [2015] eKLR
  • Rai & 3 others vs. Rai & 4 others
    [2014] KESC 31 (KLR)
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 152 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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Before 2024
Trial magistrate finds land held in constructive trust
Before 2024
Environment and Land Court upholds trial court decision
Before 2024
Court of Appeal affirms ELC judgment
2024-03-06
Appellant files petition in Supreme Court under Article 163(4)(a)
2024-05-28
Respondent files preliminary objection challenging jurisdiction
2025
Supreme Court strikes out petition for want of jurisdiction

Practical implications

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For lawyers

Plan Supreme Court appeals carefully

When preparing an appeal to the Supreme Court, verify that the Court of Appeal decision involved a question of constitutional interpretation or application. If the lower courts decided the case on factual grounds, do not attempt to reframe it as a constitutional matter at the Supreme Court. This case confirms that such attempts will be struck out for lack of jurisdiction.

For businesses

Know the limits of Supreme Court appeals

If your business is involved in litigation that does not involve constitutional interpretation, be aware that the Supreme Court will not hear an appeal even if you later claim constitutional rights were violated. Ensure that any constitutional issues are raised and addressed in the lower courts. This case underscores the importance of identifying the correct legal basis for appeal early.

For individuals

Raise constitutional issues early in your case

If you are in a legal dispute, remember that the Supreme Court only hears cases that involve interpreting the Constitution. If your case is about facts, like who owns land, you cannot appeal to the Supreme Court by adding constitutional arguments at the last minute. Make sure any constitutional questions are part of your case from the beginning.

Frequently asked questions

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When can I appeal to the Supreme Court in Kenya?+

You can appeal as of right only if the Court of Appeal decision involved interpreting or applying the Constitution. If the case was decided on factual or other legal grounds, the Supreme Court may not have jurisdiction.

Can I raise constitutional arguments for the first time at the Supreme Court in Kenya?+

No. The Supreme Court has ruled that constitutional arguments must have been part of the case in the lower courts. Raising them only at the Supreme Court is not allowed and the appeal will be struck out.

What is the John Mutua Mwanzia vs Peter Mwanzia Mutua case about?+

It is a Supreme Court case about a land dispute between brothers. The Court struck out the appeal because it did not involve constitutional interpretation, only factual findings on a trust.

Does the Supreme Court hear all land disputes in Kenya?+

No. The Supreme Court only hears appeals that involve constitutional interpretation or application. Land disputes based on evidence and trust law do not qualify unless a constitutional question was central in the lower courts.

Later judgments citing this (13)

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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, "Ngao v Kitheka", Case Analysis (2025). Petition E006 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/1/eng@2025-01-31

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