Njuguna & 46 others v Spire Properties (K) Limited & 12 others
The bottom line
#Supreme Court cannot hear appeals that only cite the Constitution without raising real constitutional issues.
What this practically means
#The Supreme Court of Kenya struck out an appeal because it did not involve genuine constitutional questions. The case was about whether the Employment and Labour Relations Court had jurisdiction over a hotel receivership dispute. The Court of Appeal had already decided that issue based on statutory law, not the Constitution. The Supreme Court said it only hears appeals that raise serious constitutional interpretation issues, not cases where the Constitution is mentioned only in passing. The appellants should have asked the Court of Appeal to clarify its own order instead of appealing to the Supreme Court.
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 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) to hear an appeal challenging the Court of Appeal's interpretation of article 162(2) of the Constitution as read with section 12 of the ELRC Act.
The Supreme Court lacks jurisdiction because the issue of the ELRC's jurisdiction over receivership matters was not a question of constitutional interpretation or application that was integrally linked to the main cause; it was a statutory interpretation issue with only a limited bearing on the constitutional provision.
The court applied the principles from Paul Mungai Kimani and Rutongot Farm Ltd, examining what was in issue at the High Court and Court of Appeal. The High Court's ruling transferring the matter to the ELRC did not involve interpretation of article 162(2) but merely applied section 12 of the Industrial Court Act. The Court of Appeal's determination that the ELRC exceeded its jurisdiction was based on statutory limits, not constitutional interpretation. The constitutional reference was peripheral, and the appeal did not raise a cogent constitutional controversy.
Whether the Court of Appeal's allegedly unclear order violated article 10 of the Constitution, thereby giving the Supreme Court jurisdiction under article 163(4)(a).
The Supreme Court lacks jurisdiction because the complaint about the clarity of the Court of Appeal's order is not a constitutional issue but a matter that can be addressed by the Court of Appeal under its slip rule or settlement of terms provisions.
The court noted that the appellants were essentially asking the Supreme Court to interpret and clarify the Court of Appeal judgment, which the Supreme Court has no jurisdiction to do. The proper remedy was to move the Court of Appeal under rule 34 or 35 of its rules. The alleged violation of article 10 was not a genuine constitutional controversy but a factual contestation about the meaning of the order.
Legal principles established
#- An appeal to the Supreme Court under Article 163(4)(a) requires constitutional issues to have been raised and decided by both lower courts.
- Mere citation of constitutional provisions does not create Supreme Court jurisdiction; the issues must involve cardinal constitutional law.
- Where constitutional interpretation has only a limited bearing on the main case, Supreme Court jurisdiction is not properly invoked.
- The Supreme Court cannot interpret or clarify Court of Appeal judgments; that must be done in the Court of Appeal under its slip rules.
- Statutory interpretation issues, even if they touch on the Constitution, do not automatically become constitutional questions for Supreme Court appeal.
Court orders
#- 1.The preliminary objection dated November 3, 2022 be and is hereby upheld
- 2.The petition of appeal dated September 12, 2022 be and is hereby struck out
- 3.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No 135 of 2018, consolidated with Civil Appeal No 139 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Appeal on the merits
The Supreme Court lacked jurisdiction under article 163(4)(a) as the appeal did not raise a question of constitutional interpretation or application that was integrally linked to the main cause.
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.
A mere allegation(s) of constitutional violations or citation of constitutional provisions, or issues on appeal which involves little or nothing to do with the application or interpretation of the Constitution does not bring an appeal within the jurisdiction of the Supreme Court under article 163(4)(a).
Where the interpretation or application of the Constitution has only but a limited bearing on the merits of the main cause, then the jurisdiction of this court may not be properly invoked.
this court has no jurisdiction to interpret its decisions or those of other courts.
Key timeline
#Practical implications
#Draft appeals with constitutional substance
When appealing to the Supreme Court under Article 163(4)(a), ensure the constitutional issue was genuinely raised and determined by both the High Court and Court of Appeal. Avoid framing statutory interpretation disputes as constitutional violations. If a Court of Appeal order is unclear, use the slip rule or settlement provisions in that court, not a Supreme Court appeal.
Know which court handles your dispute
If your business is involved in a receivership or employment dispute, understand that the Employment and Labour Relations Court has limited jurisdiction. It cannot invalidate a receivership. The Court of Appeal clarified this based on statutory law. Appeals to the Supreme Court are only for serious constitutional questions, not routine statutory disagreements. Plan your legal strategy accordingly.
Supreme Court is not for every appeal
If you lose a case in the Court of Appeal, you cannot automatically appeal to the Supreme Court just because you mention the Constitution. The Supreme Court only hears cases that involve real constitutional interpretation issues. If the Court of Appeal's order is unclear, ask that court to clarify it. This saves time and money.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya if my case involves the Constitution?+
Not automatically. The Supreme Court only hears appeals under Article 163(4)(a) if the constitutional issue was genuinely raised and decided by both the High Court and Court of Appeal, and involves a major constitutional question. Simply citing the Constitution is not enough.
What should I do if the Court of Appeal order is unclear in Kenya?+
You should ask the Court of Appeal to clarify its order using its slip rule or settlement of terms provisions. The Supreme Court cannot interpret or clarify Court of Appeal judgments, as confirmed in this case.
Does the Employment and Labour Relations Court in Kenya have jurisdiction over receivership matters?+
No, the Court of Appeal held that the ELRC exceeded its jurisdiction by invalidating a receivership. The ELRC can handle employment disputes but cannot interfere with receivership proceedings, which are governed by other laws.
What is the cost of losing a preliminary objection on jurisdiction in the Supreme Court of Kenya?+
In this case, each party bore their own costs. However, you may still incur legal fees and lose time. It is important to ensure your appeal raises genuine constitutional issues before filing to avoid such outcomes.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohamed & 5 others v Masinde Muliro University of Science and Technology & 8 others (Environment and Land Case 48 of 2019) [2026] KEELC 4360 (KLR)[2026] KEELC 4360 (KLR)8 Jul 2026
- Shah & another (Suing for and on behalf of the Estate of Rajnikant Devchand Shah (Deceased)) & 4 others v Kenya Railways Corporation & 4 others (Environment and Land Case E007 of 2022) [2026] KEELC 2712 (KLR)[2026] KEELC 2712 (KLR)29 Apr 2026applied
- Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others[2026] KESC 24 (KLR)20 Feb 2026
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 26 (KLR)16 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Njuguna & 46 others v Spire Properties (K) Limited & 12 others", Case Analysis (2023). Petition 28 (E030) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/37/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.