PETITION NO. 5 OF 2020

Reference Details

Parties:          

Appellant -The Executive Committee Kisii County, The Governor Kisii County and The County Government of Kisii.

Respondents – Masosa Construction Limited (1st) and The Transition Authority (2nd).

Jurisdiction:

Supreme Court of Kenya (Coram:P. M. Mwilu; DCJ & VP, M. K. Ibrahim, S. C. Wanjala, Njoki Ndungu & I. Lenaola, SCJJ).

Date of Decision:

 16th July, 2021

Case Status:

(Being an appeal from the Judgment of the Court of Appeal at Kisumu (Makhandia, Kiage & Otieno-Odek, JJA) delivered on 3rd April 2020 in Civil Appeal No. 39 of 2016)

  1. FACTS
    1.  Substantive Facts

Masosa Construction Limited entered into a contractual work agreement with the Municipal Council of Kisii (now defunct), to widen and gravel specific roads within Kisii Municipality. After the contract was executed, Masosa Construction Limited commenced the contractual works and performed its obligations until completion. The Municipal Council of Kisii prepared and issued a final certificate, denoting the total sums payable to the construction company. A dispute thereafter arose when the Municipal Council of Kisii blatantly failed to pay that amount.

 Procedural Facts

In pursuit of its monies, Masosa Construction Limited filed a civil suit, Kisii HCC No. 67 of 2007 for recovery of the payment for the works done. Judgment was entered in their favor, and the High Court ordered the Municipal Council of Kisii to pay a decretal sum of Kshs 15, 556, 986.70.  The Municipal Council of Kisii still failed to pay the decretal sum.

This prompted Masosa Construction Limited to file another suit, Miscellaneous Application No. 10 of 2011, compelling the Municipal Council of Kisii to settle the debt. The Court again ruled in their favor. The Municipal Council of Kisii then paid part of the decretal sum, leaving an outstanding balance of Kshs 8,464,699.05. However, the County Government of Kisii felt aggrieved by the Court’s decision in the first suit, HCCC No. 67 of 2007, and chose to appeal it. This appeal was dismissed.

The continued delay of payment prompted Masosa Construction Limited to file yet another suit, Miscellaneous Application No. 14 of 2013. This was a judicial review application, in which it asked the Court to compel the Appellants to settle the outstanding amount. The High Court granted this prayer. However, the Appellants still refused to comply with these orders. The construction company thus sought leave of the High Court to institute Miscellaneous Application No. 72 of 2015, another judicial review application, in which it sought an order that the Appellants herein be cited and punished for contempt of court.

The High Court then proceeded to cite the Appellants for contempt and further issued a seven-day period to allow the Appellants time to expunge the contempt, failure to which a warrant of arrest was to be issued against the County Governor of Kisii County. The Appellants did not honor this, and the ruling was issued against them. This triggered the Appellants, who moved to the Court of Appeal in Civil Appeal No. 39 of 2016. The Court, however, unanimously agreed that they had been in contempt, and dismissed their appeal. They hence moved to the Supreme Court, asking that their petition be allowed, that the judgment of the Court of Appeal be set aside and be substituted with an order allowing this petition, and for the costs of the suit.

  • ISSUES

The issue fordetermination before the Supreme Court was whether the appeal met the constitutional threshold under Article 163(4) of the Constitution.

  • RULE OF LAW

The Supreme Court was tasked with interpreting Article 163(4)(a) of the Constitution, which gives the court jurisdiction to entertain appeals from the Court of Appeal, as a matter of right in any case involving the interpretation or application of the Constitution.

In determining the issue at hand, the Court relied on its own previous decision in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another, where it was categorical that for the Court to be seized of jurisdiction under that Article:

 “… the appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an Appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a)”

  • HOLDING

In looking at the issue raised in this petition, the Court held that the Appeal failed to meet the threshold under Article 163(4)(a) of the Constitution. It answered the questions that it had held that should be answered in ascertaining whether an appeal raises a question of constitutional interpretation or application; and whether the constitutional issue arising has been considered by the Superior Courts, resulting in the filing of an appeal before the Supreme Court. The Court looked at the facts before it and held that at no point were the Superior Courts called upon to determine any issue involving the interpretation or application of any provision of the Constitution. The dispute, quite plainly, revolved around whether or not the Appellants were in contempt of court orders, and the Superior Courts determined that the Appellants had indeed disobeyed court orders.

The Supreme Court stated that since the appeal did not meet the threshold of Article 163(4)(a) of the Constitution, it should be struck out with costs to Masosa Construction Limited.

5.0 JUDGEMENT

From the analysis it was clearthat no question of constitutional interpretation or application was canvassed before the Supreme Court, or any of the Superior Courts. Consequently, the Supreme Court struck out the appeal for want of jurisdiction. It ordered that costs be paid to Masosa Construction Limited.

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