Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 5 others
The bottom line
#State your legal basis clearly when appealing to Kenya's Supreme Court or risk dismissal.
What this practically means
#To appeal a case to Kenya's Supreme Court, you must state exactly which part of Article 163(4) of the Constitution gives the court power to hear your appeal. You cannot simply avoid specifying this and later argue it was a minor mistake fixable under other rules. The Supreme Court will not guess your legal basis. In this case, voters appealing a Kwale election matter lost their petition because they failed to do this, and the court struck out their entire case, though each side paid its own costs.
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 entertain and determine the appeal herein
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal from the Court of Appeal where the appellant has not specified whether the appeal is brought under Article 163(4)(a) or Article 163(4)(b) of the Constitution.
The Supreme Court lacks jurisdiction. An appellant must unequivocally indicate under which limb of Article 163(4) they invoke the Court's jurisdiction; the omission is not curable under Article 159.
The Court held that its appellate jurisdiction is donated by the Constitution and is neither original nor unlimited. An intending appellant must either seek certification under Article 163(4)(b) or bring themselves within Article 163(4)(a). The Court rejected the argument that the absence of certification automatically means the appeal lies as of right under Article 163(4)(a). Citing Daniel Kimani Njihia, the Court stated that invoking the correct constitutional provision is mandatory and not a procedural technicality. Since the petitioners failed to specify the jurisdictional limb and did not demonstrate that their appeal fell within Article 163(4)(a), the Court struck out the petition for want of jurisdiction.
Legal principles established
#- The Supreme Court's appellate power is limited only to cases that fall strictly under Article 163(4) of the Constitution.
- An appellant must clearly state whether their appeal is as of right under Article 163(4)(a) or requires certification under Article 163(4)(b).
- Failing to specify the correct constitutional basis for an appeal is not a minor procedural error that can be forgiven under Article 159.
- A party cannot argue that because certification was not sought, the appeal automatically qualifies as an appeal as of right.
Court orders
#- 1.The petition of appeal dated June 22, 2018 is hereby struck out for want of jurisdiction.
- 2.Each party shall bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Mombasa
- Election Petition Appeal No. 4 of 2018
- Jurisdiction invoked
- Article 163(4) of the Constitution
Relief refused
#Setting aside the Court of Appeal ruling and orders
The Supreme Court lacked jurisdiction to entertain the appeal.
Order that the petitioners be substituted as appellants/1st respondent in the superior court
The Supreme Court lacked jurisdiction to entertain the appeal.
Order that the Court of Appeal hears and determines the appeal on merit
The Supreme Court lacked jurisdiction to entertain the appeal.
Costs
Each party shall bear its 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 petition of appeal dated June 22, 2018 is hereby struck out for want of jurisdiction.
Each party shall bear its own costs.
a litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under article 159 of the Constitution.
This court is being called upon to hold that, because certification, was not sought by the intending appellant, then it must follow that the said appellant, is invoking the court's jurisdiction as of right, under article 163 (4) (a) of the Constitution, even without demonstrating that, such right obtains in the first place. This we cannot do
Key timeline
#Practical implications
#Draft precise grounds of appeal
When preparing Supreme Court petitions, explicitly identify whether the appeal falls under Article 163(4)(a) or (b). Do not rely on Article 159(2)(d) to cure vague jurisdictional claims. In this case, failing to specify doomed the case. Include a clear statement of the constitutional basis and, if under (b), attach the certification ruling.
For businesses involved in commercial disputes that may reach the Supreme Court, ensure your legal team files a precise notice of appeal. Any ambiguity about the constitutional basis for the court's jurisdiction can result in immediate dismissal, wasting time and resources. Always verify the specific provision under which you appeal.
Demand clear legal advice
If you are appealing a case to the Supreme Court, ask your lawyer to explain exactly why the court has power to hear your appeal. As this case shows, the court will not fix a failure to specify the right constitutional clause. Avoid delays and costs by insisting on a clear basis upfront.
Frequently asked questions
#What happens if you don't specify your legal basis for appeal in Kenya's Supreme Court?+
Your appeal will likely be struck out. The Supreme Court requires you to state whether you are appealing as of right or because the Court of Appeal certified the case as one of general public importance. Failing this is not a minor mistake.
Can Article 159 of Kenya's Constitution fix a wrong appeal jurisdiction?+
No. The court has ruled that choosing the wrong constitutional provision for an appeal is not a procedural technicality that Article 159 can cure. You must get the jurisdiction right from the start.
What is Article 163(4) of Kenya's Constitution for appeals?+
It defines the Supreme Court's appellate jurisdiction. Under (a), appeals from the Court of Appeal are as of right in cases involving constitutional interpretation or application. Under (b), appeals require certification by the Court of Appeal as involving a matter of general public importance.
Did the voters in the Kwale Supreme Court case pay costs after losing?+
No. The court ordered each party to bear its own costs because the petitioners appeared to be promoting the larger public interest of political rights, even though their appeal was struck out for lack of jurisdiction.
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.
- SBM Bank (Kenya) Ltd v Afrasia Bank Ltd (Civil Application E600 of 2025) [2026] KECA 944 (KLR)[2026] KECA 944 (KLR)15 May 2026
- Kinuthia (Suing as the Legal/Personal Representative of the Estate of Loise Gachiku Kinuthia (Deceased)) v Rugiri & 3 others[2026] KESC 35 (KLR)15 May 2026followed
- Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae)[2024] KESC 63 (KLR)29 Oct 2024followed
- Sonko v County Assembly of Nairobi City & 11 others[2022] KESC 76 (KLR)5 Dec 2022followed
Cite this brief
#Cite this brief
Caselaw, "Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 5 others", Case Analysis (2018). Petition 12 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/76/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.