B. N. Kotecha & Sons Ltd & another v Amalo Company Limited (Petition (Application) E008 of 2025 & Application E006 of 2025 (Consolidated)) [2025] KESC 43 (KLR) (27 June 2025) (Ruling)

B. N. Kotecha & Sons Ltd & another v Amalo Company Limited (Petition (Application) E008 of 2025 & Application E006 of 2025 (Consolidated)) [2025] KESC 43 (KLR) (27 June 2025) (Ruling) Neutral citation: [2025] KESC 43 (KLR) Republic of Kenya In the Supreme Court of Kenya Petition (Application) E008 of 2025 & Application E006 of 2025 (Consolidated) MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & W Ouko, SCJJ June 27, 2025 Between B. N. Kotecha & Sons Ltd 1st Petitioner Hemal Kotecha 2nd Petitioner and Amalo Company Limited Respondent (Being applications for conservatory and stay orders, and to strike out the Petition dated 5th March 2025 against the Judgment and Orders of the Court of Appeal (Okwengu, H.A. Omondi & Ngugi, JJ.A) delivered in Kisumu Civil Appeal No. 81 of 2019 on 24th January 2025) Appeal to the Supreme Court dismissed for lack of jurisdiction _A matter that did not involve constitutional interpretation at the High Court or Court of Appeal did not invoke the Supreme Court’s jurisdiction to hear an appeal on issues of constitutional interpretation._ Reported by John Ribia **_Jurisdiction_** _\- jurisdiction of the Supreme Court - appellate jurisdiction - jurisdiction to determine appeals raising matters of constitutional interpretation - whether a matter that did not involve constitutional interpretation at the High Court or Court of Appeal could invoke the Supreme Court’s jurisdiction to hear an appeal on issues of constitutional interpretation - Constitution of Kenya 163(4)(a)_ Brief facts The matter before the Supreme Court involved two Notices of Motion: the first, filed by the appellants, sought conservatory and stay orders against execution of the High Court and Court of Appeal judgments in Kisumu Civil Suit No. 11 of 2018 and Kisumu Civil Appeal No. 81 of 2019, pending determination of the petition. The second, filed by the respondent, sought to strike out the petition and the first motion for want of jurisdiction. The appellants contended the appeal raised constitutional issues, while the respondent argued the matter concerned private law and fell outside the Supreme Court’s constitutional jurisdiction. Issues Whether a matter that did not involve constitutional interpretation at the High Court or Court of Appeal could invoke the Supreme Court’s jurisdiction to hear an appeal on issues of constitutional interpretation. Held 1. The records and decisions of the superior courts indicated that the High Court had carefully exercised its discretion in dismissing the application to set aside an interlocutory judgment on the ground that the draft defence disclosed no triable issue. The Court of Appeal, in dismissing the subsequent appeal, confined its consideration to whether the High Court had lawfully exercised its discretionary powers. 2. The appeal did not involve any constitutional question and therefore fell outside the jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution. _Preliminary objection allowed._ Orders 1. _The Notice of Motion dated March 20, 2025 and filed on April 3, 2025, allowed._ 2. _The Notice of Motion dated March 5, 2025 and filed on March 14, 2025, was dismissed._ 3. _The Petition of Appeal No E008 of 2025 dated March 5, 2025 and filed on March 14, 2025 was struck out._ 4. _The petitioners shall bear the respondent’s costs. Security of costs was refunded._ Citations **Cases**** _Kenya_** 1. _Board of Governors, Moi High School, Kabarak & another v Bell & 2 others_ Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012; [2013] KESC 12 (KLR) (Consolidated) - (Mentioned) 2. _Joho & another v Shahbal & 2 others_ Petition 10 of 2013; [2014] KESC 34 (KLR); [2014] 1 KLR 111 - (Mentioned) 3. _Kimani & 20 others (On behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney General & 2 others_ Petition 45 of 2018; [2020] KESC 9 (KLR) - (Mentioned) 4. _Munya v Kithinji & 2 others_ Application 5 of 2014; [2014] KESC 30 (KLR); [2014] 3 KLR 36 - (Mentioned) 5. _Nduttu & 6000 others v Kenya Breweries Ltd & another_ Petition 3 of 2012; [2012] KESC 9 (KLR); [2012] 3 KLR 804 - (Explained) 6. _Wanjohi v Kariuki & 2 others_ Civil Application 6 of 2014; [2014] KESC 24 (KLR); [2014] 3 KLR 151 - (Mentioned) **Statutes**** _Kenya_** 1. Constitution of Kenya articles 25(c); 50; 163(4)(a) - (Interpreted) 2. Supreme Court Act (cap 9B) sections 21, 24 - (Interpreted) 3. Supreme Court Rules, 2020 (cap 9B Sub Leg) rules 3(5); 31; 32 - (Interpreted) Advocates _Mr Ogada Meso_ for the petitioners._Mr Isaac Okero_ for the respondent. Ruling **Representation:** Mr Ogada Meso for the petitioners(Prof Tom Ojienda & Associates)Mr Isaac Okero for the respondent(Behan & Okero Advocates) 1.While appreciating their correlation, this ruling will dispose of two notices of motion, the first by the petitioners dated March 5, 2025 seeking conservatory and stay orders, and the second by the respondent dated March 20, 2025 seeking to strike out the petition dated March 5, 2025 and the first application (for conservatory and stay orders), for want of jurisdiction. In addition, the respondent filed a preliminary objection dated March 20, 2025 contending that the court lacks jurisdiction to determine the petition and the application for conservatory and stay orders. 2.Upon perusing the notice of motion by the petitioners dated March 5, 2025 and filed on March 14, 2025, brought pursuant to sections 21 and 24 of the [Supreme Court Act, 2011](/akn/ke/act/2011/7) and rules 3(5), 31 and 32 of the [Supreme Court Rules, 2020](https://new.kenyalaw.org/akn/ke/act/ln/2020/101/eng@2022-12-31), seeking: conservatory orders staying execution of the Judgment by the Court of Appeal (Okwengu, HA Omondi & Ngugi, JJA) delivered in Kisumu Civil Appeal No 81 of 2019 on January 24, 2025, pending the hearing and determination of the application and the petition both dated March 5, 2025; conservatory orders staying execution of the ruling of the High Court in Kisumu Civil Suit No 11 of 2018 pending the hearing and determination of the application and the petition both dated March 5, 2025; such other appropriate reliefs; and costs; and 3.Upon considering the petitioners’ grounds on the face of the application and affidavit in support sworn by Harshil Kishore Kotecha on March 5, 2025, in which it is contended that the application meets the threshold for grant of conservatory and stay of execution orders, particularly that: the appeal is arguable and raises weighty issues for consideration by this court; unless stay is granted, the appeal will be rendered nugatory as the respondent is at liberty to proceed with execution and any attendant proceeding during the pendency of the appeal; and that it is in the public interest to grant the prayers sought; and 4.Upon considering the petitioners’ submissions dated March 5, 2025 in support of the application for stay, and supplementary submissions dated March 26, 2025 in opposition to the respondent’s preliminary objection, to the effect that the appeal upon which the application is anchored raises issues of constitutional interpretation and application of articles 25(c) and 50 of the [Constitution](/akn/ke/act/2010/constitution) on the right to be heard; and that this issue was the subject of determination by the superior courts. They cite this court’s decisions in [Hassan Ali Joho & another v Suleiman Said Shabal & 2 others](/akn/ke/judgment/kesc/2014/34) [2024] eKLR; and [Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney General & 2 others](/akn/ke/judgment/kesc/2020/9) [2020] eKLR. Similarly, the petitioners urge that the court has jurisdiction to grant interlocutory reliefs. They rely on this court's decision in [Board of Governors, Moi High School, Kabarak & another v Malcom Bel](/akn/ke/judgment/kesc/2013/12), SC Application No 12 & 13 of 2013; [2013] eKLR. The petitioners further restate that they have met the principles for grant of stay of execution, as established in [Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others](/akn/ke/judgment/kesc/2014/30), SC Application No 5 of 2014; [2014] eKLR; and [George Mike Wanjohi v Steven Kariuki & 2 others](/akn/ke/judgment/kesc/2014/24), SC Application No 6 of 2014 [2014] eKLR; and 5.Noting the respondent’s preliminary objection dated March 20, 2025 and submissions of April 1, 2025, wherein it is urged that: this court lacks the jurisdiction to hear the application as the same is premised on an incompetent petition; and that the Judgment of the Court of Appeal and the ruling by the High Court solely concerned a matter of private law, the decisions of which had nothing to do with the interpretation or application of the [Constitution](/akn/ke/act/2010/constitution); and 6.Upon perusing the notice of motion by the respondent dated March 20, 2025 and filed on April 3, 2025, brought under rule 31(6) of the Supreme Court Rules, 2020, seeking: to strike out the petition dated March 5, 2025 and filed on March 14, 2025; and the motion of even date for want of jurisdiction; and costs; and 7.Upon considering the grounds in support of the application, the respondent’s supporting affidavit sworn by Anil Kumar D Shah, submissions dated March 20, 2025 and rejoinder submissions dated April 1, 2025, wherein the respondent reiterates that this court lacks jurisdiction to determine both the appeal and application herein; that neither the High Court nor the Court of Appeal interpreted or applied the [Constitution](/akn/ke/act/2010/constitution); it is contended that the High Court (Cherere J) rightfully exercised discretion under order 10 rule 11, in setting aside the interlocutory judgment and dismissing the petitioners’ application for setting aside on the ground that there was no defence on the merits. Additionally, that the issue before the Court of Appeal did not involve the interpretation or application of the [Constitution](/akn/ke/act/2010/constitution), but only determined whether the trial court exercised its discretion rightfully, reasonably or rationally; and 8.Upon considering the petitioners’ replying affidavit sworn by Harshil Kishore Kotecha on March 26, 2025 in opposition to the respondent’s application, and submissions of even date, wherein they restate their submissions on jurisdiction in the first motion adverted to; while further urging that by dint of article 163(4)(a) of the [Constitution](/akn/ke/act/2010/constitution), this court has the requisite jurisdiction to hear and determine the appeal and application for conservatory orders; that the superior courts below interpreted and applied the provisions of articles 25(c) and 50 of the [Constitution](/akn/ke/act/2010/constitution); that it is the interpretation and application of these provisions that is challenged before this court; and that the respondent’s application is fatally defective, bad in law and an abuse of the court processes; and 9.Noting that a preliminary objection on jurisdiction has been raised by the respondent on the question whether this court has jurisdiction under article 163(4)(a), it is our considered view that the challenge to our jurisdiction goes to the competency of the application for stay as well as the appeal. It is therefore apposite to deal with this issue in limine; and 10.Bearing in mind this court’s decision regarding the proper invocation of its jurisdiction under article 163(4)(a) of the [Constitution](/akn/ke/act/2010/constitution) in [Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another](/akn/ke/judgment/kesc/2012/9) SC Petition No 3 of 2012; [2012], eKLR, wherein we stated:“This article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court…The appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the [Constitution](/akn/ke/act/2010/constitution). In other words, an appellant must be challenging the interpretation or application of the [Constitution](/akn/ke/act/2010/constitution) which the Court of Appeal used to dispose of the matter in that forum.” 11.Further bearing in mind the principle in [Nduttu](/akn/ke/judgment/kesc/2012/9) (supra) emphatically restated in [Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others](/akn/ke/judgment/kesc/2014/34) SC Petition No 10 of 2013 [2014] eKLR and [Gatirau Peter Munya v Dickson Mwenda & 2 others](/akn/ke/judgment/kesc/2014/30) SC Application No 5 of 2014 [2014] eKLR; and 12.Having considered the totality of the applications, responses thereto, and submissions made by the parties, We now opine as follows:i.Examining the records and decisions by the superior court below, it is clear that the High Court interrogated and exercised its discretion in dismissing the application for setting aside an interlocutory judgment on the ground that the draft defence did not raise any triable issue;ii.Similarly, in its Judgment dismissing the appeal, the Court of Appeal confined itself to the question as to whether the High Court had judiciously exercised its discretionary powers in dismissing the application for setting aside an interlocutory Judgment; andiii.Guided by the foregoing principles, we find that the appeal before us does not involve the application or interpretation of the [Constitution](/akn/ke/act/2010/constitution) and therefore falls outside the jurisdictional ambit of this court under article 163(4)(a).iv.In the absence of jurisdiction, we cannot delve into the application for conservatory orders staying execution of the Judgment by the Court of Appeal as sought by the petitioners in their notice of motion dated March 5, 2025 and filed on March 14, 2025. 13.Consequently, and for the reasons aforesaid, we make the following orders:i.The preliminary objection dated March 20, 2025 be and is hereby allowed;ii.The notice of motion dated March 20, 2025 and filed on April 3, 2025, be and is hereby allowed;iii.The notice of motion dated March 5, 2025 and filed on March 14, 2025, be and is hereby dismissed;iv.The Petition of Appeal No E008 of 2025 dated March March 5, 2025 and filed on March 14, 2025 be and is hereby struck out;v.The petitioners shall bear the respondent’s costs; andvi.We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners;It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 27 TH DAY OF JUNE 2025.****…………………………………………………****M. K. KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****…………………………………………………****M. K. IBRAHIM****JUSTICE OF THE SUPREME COURT****…………………………………………………****S. C. WANJALA****JUSTICE OF THE SUPREME****…………………………………………………****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****…………………………………………………****W. OUKO****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original**REGISTRAR****SUPREME COURT OF KENYA** *[eKLR]: electronic Kenya Law Reports *[Kshs]: Kenya Shillings