The ruling was issued by a five-judge bench, comprising Lady Justice Philomena Mwilu, Jucstice Ibrahim, Justice Wanjala, Justice Lenaola, and Lady Justice Njoki Ndung’u. The petitioner in this matter had brought an application to court, seeking conservatory orders, or, in the alternative, orders that would stay the Court of Appeal judgment in Civil Appeal No. 273 of 2019.

Background and Brief Facts

On 7th September, 2018, the Petitioner received a letter from Kenya Bureau of Standards, informing them that 29,716 bags of 50kg each, marked Mauritius Sugar, and 46 bags of 50kg each, marked Thailand Sugar, had failed the tests set by Kenya Bureau of Standards, and had therefore been condemned for destruction. Feeling aggrieved, United Millers Limited applied to the High Court, seeking orders to quash the decision. However, the High Court dismissed the judicial review application for various reasons, including that it had offended the doctrine of exhaustion of available statutory remedies; and that it failed to apply for or satisfy the exceptional circumstances within which a party can directly move to the High Court. United Millers Limited then took it a step further and appealed this decision at the Court of Appeal, which upheld the decision of the trial court. They then moved to the Supreme Court, in Petition No. 4 of 2021.

The applicant argued that the appeal raises fundamental constitutional issues regarding the effectiveness and relevance of the protection afforded by Article 47 of the Constitution and the Fair Administrative Actions Act; the exhaustion of alternative dispute resolution mechanisms; and the supervision by amorphous multi-agency bodies under the Executive, which operate on the basis of undisclosed, legally unfounded principles. It argued that unless the Court of Appeal decision is stayed, the appeal will be rendered nugatory. It relied on Article 23(3) which gives the Courts authority to uphold and enforce the Bill of Rights by issuing appropriate reliefs, such as conservatory orders. It contended that it had met the threshold for a grant of conservatory orders as laid out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others. It also relied on Krish Commodities Limited v Kenya Revenue Authority to buttress its position.

It its response, the first respondent argued that in fact, during the protracted period, the goods forming the subject matter of this appeal had irreversibly deteriorated, and thus could not be released for public consumption. The court would thus be granting orders in vain, which it was cautioned against. It relied on Malindi Law Society v Law Society of Kenya, Nairobi Branch & 5 others to support this position. It also argued that the matter was improperly before the Court, since the applicant had not demonstrated that the appeal involved matters of constitutional interpretation and/or application, and neither had it sought leave to appeal to the Supreme Court. It relied on Lawrence Nduttu & 6000 others v Kenya Breweries Limited & another, whose principles, it argues, have not been met in this appeal. It also relied on Sum Model Industries Limited v Industrial and Commercial Development Corporation which lays out the requirement to seek leave to file an appeal at the Supreme Court.

The second to sixth respondents did not file any response.


  1. Whether the Supreme Court had jurisdiction under Article 163(4)(a) of the Constitution to hear and determine Petition No. 4 of 2021, and consequently this application
  2. Whether the orders sought in the application can issue

The Laws Relied On

The Court cited Article 163(4) of the Constitution, which stipulates the jurisdiction of the Supreme Court. It then relied on the Lawrence Nduttu case mentioned above; Hassan Ali Joho & Another v Suleiman Said Shahbal; and the Peter Munya case mentioned above. In each of these matters, the Supreme Court broke down the issue of its jurisdiction as stipulated in Article 163(4) of the Constitution.


In applying the principles in the above rules to this matter, the Court held that it did not have jurisdiction to hear this matter, and consequently the application before it. This is because, upon examination of the records, it was clear to the courts that both the High Court and the Court of Appeal had dismissed the matter due to lack of jurisdiction. In the High Court, the trial judge was of the opinion that the applicant herein had not exhausted the available dispute resolution mechanism, and had therefore offended the principle of exhaustion of statutorily available remedies, without satisfying the exceptional circumstances under Section 9(2) of the Fair Administrative Actions Act. The Court of Appeal upheld this decision and entirely endorsed this reasoning.

The Court therefore held that, while issues of constitutional application and interpretation had been raised in the substantive judicial review application, they were nipped at the bud by the preliminary objection on the issue of jurisdiction, which was upheld by both courts. The Bench cited its finding in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others wherein it held that, even when superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals, or any other quasi-judicial authorities, to deal with the issue as provided for in their parent statutes.


The Court struck out Petition No. 4 of 2021 and dismissed the application that had been filed therein. It also ordered the petitioner, United Millers Limited, to bear the costs for Kenya Bureau of Standards.

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