Mburu v Republic (Petition E023 of 2024) [2025] KESC 69 (KLR) (5 December 2025) (Ruling)

Mburu v Republic (Petition E023 of 2024) [2025] KESC 69 (KLR) (5 December 2025) (Ruling) Neutral citation: [2025] KESC 69 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E023 OF 2024 PM MWILU, DCJ & VP, MK IBRAHIM, N NDUNGU, I LENAOLA & W OUKO, SCJJ DECEMBER 5, 2025 BETWEEN DAN KANG'ARA MBURU .................................................................... APPELLANT AND REPUBLIC ............................................................................................  RESPONDENT (Being an appeal from the Judgment of the Court of Appeal at Nairobi (Kiage, Ali- Aroni, Achode, JJ.A) delivered on 24th May 2024 in Criminal Appeal No. 35 of 2020) RULING Mr. Evans Ondieki & Ms. Maureen Nyakundi for the appellant. (Ondieki & Ondieki Advocates) Ms. Angela Fuchaka for the respondent. (Oce of the Director of Public Prosecutions) 1. Bearing in mind that jurisdictional questions are fundamental and may be raised at any point in judicial proceedings; and recognizing this Court's power pursuant to Section 18 of the Supreme Court Act to strike out petitions that are fundamentally awed for lack of jurisdiction; and guided by this Court's established practice and precedent, which arms the discretion to address preliminary objections at the threshold stage to ensure ecient administration of justice; and 2. Taking into account that this Court has deemed it appropriate to exercise its discretion by considering, at the outset, the respondent's Notice of Preliminary Objection dated 8th July 2025, which contests this Court's jurisdictional competence to adjudicate the Petition of Appeal dated 12th September 2025; and 3. Noting that from the record, the appellant was originally charged before the Chief Magistrate's Court with oences relating to dealing with suspect property and abuse of oce under the Anti-Corruption and Economic Crimes Act; that his conviction and sentence were armed by the High Court on rst https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/69/eng@2025-12-05 1 appeal, though with a modication to the sentence imposed; and that his further appeal to the Court of Appeal was unsuccessful, with the appellate court upholding the ndings of the courts below regarding the suciency of the prosecution's circumstantial case; and 4. Upon perusal of the respondent's Notice of Preliminary Objection dated 8th July 2025, premised on the grounds that: this Court lacks jurisdiction as the Petition of Appeal does not fall within the ambit of Article 163(4)(a) of the Constitution, raising no issues of constitutional interpretation or application that were contested in the courts below; the appeal has not been certied as involving a matter of general public importance by the Court of Appeal as required under Article 163(4)(b) of the Constitution; the appellant has failed to identify the proper legal framework for the Appeal; and the appellant failed to le a Notice of Appeal within the fourteen-day period stipulated under Rule 36(1) of the Supreme Court Rules, 2020; and 5. Upon considering the respondent's written submissions dated 7th September 2025 in support of the Preliminary Objection, wherein it is contended, inter alia, that: for jurisdiction to be properly invoked under Article 163(4)(a) of the Constitution, the appeal must originate from the Court of Appeal where the issues of contestation revolved around the interpretation or application of the Constitution, and the appellant must be faulting that court on the basis of such interpretation, as held in Lawrence Nduttu & 6000 others Vs Kenya Breweries Limited & Another [2012] eKLR; that the main issues before the High Court and the Court of Appeal were purely factual and evidential, centering on whether the prosecution had proved its case beyond reasonable doubt, and did not involve any distinct constitutional questions; and that, in the absence of such a foundation, the appellant's failure to seek and obtain certication from the Court of Appeal under Article 163(4)(b) is fatal to the Petition of Appeal; and 6. Cognisant of the respondent’s Replying Adavit sworn on 10th September 2025, by Angela Fuchaka, an Assistant Director of Public Prosecutions, led in opposition to the Petition, wherein it is deposed, inter alia, that: the appellant’s case before the superior courts did not raise distinct issues of constitutional interpretation and application; the broad issues for determination in the High Court were whether the prosecution had proved its case beyond reasonable doubt, whether the defence had dislodged the prosecution’s case, and whether the sentence was excessive; the Court of Appeal similarly distilled the single issue for determination as being whether the prosecution proved its case against the appellant beyond reasonable doubt; and that the petition is premature, misconceived, and has not been certied by the Court of Appeal as involving a matter of general public importance; and 7. Upon considering the appellant’s Supplementary Submissions dated 12th September 2025, in reply to the respondent’s submissions, wherein it is contended that: this Court has jurisdiction under Article 163(4)(a) of the Constitution as the appeal involves the interpretation and application of Articles 10, 20, 25, 27, 48, 49, 50 and 159 of the Constitution; that the respondent’s actions constituted an abuse of the criminal justice system, malicious prosecution, and a violation of the appellant’s right to a fair trial; and that these constitutional issues were raised in the Court of Appeal but were ignored; and 8. Further considerinG the record of appeal and the judgments from the superior courts below, it emerges that the appellant’s appeals primarily contested the suciency of evidence to sustain a conviction, the credibility of witnesses, and the severity of the sentence imposed; 9. Having considered all the foregoing, we now opine as follows: i. The foundational question before this Court is whether we possess the jurisdiction to entertain this appeal. The appellant invokes our jurisdiction under Article 163(4)(a) of the Constitution, which provides for appeals, as of right, from the Court of Appeal in any case involving the interpretation or application of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/69/eng@2025-12-05 2 ii. The settled jurisprudence of this Court, as articulated in Lawrence Nduttu & 6000 others Vs Kenya Breweries Limited & Another [2012] eKLR and Hassan Ali Joho & Another Vs Suleiman Said Shahbal & 2 others [2013] eKLR, establishes a clear test: for an appeal to lie to this Court under Article 163(4)(a), the issue of constitutional interpretation or application must have been a distinct and central ground of contestation in the superior courts below, and the appellant must be faulting the Court of Appeal on the basis of its interpretation or application of the Constitution. iii. Upon a thorough perusal of the proceedings and judgments from the High Court and the Court of Appeal, we nd that the core issues for determination revolved around whether the prosecution had proved its case beyond reasonable doubt, whether the defence had dislodged the prosecution's case, and whether the sentence was excessive. The substratum of the dispute was evidential and factual. We do not discern from the record that the appellant mounted a substantive challenge predicated on the interpretation or application of the specic constitutional provisions he now invokes. iv. The appellant's contention that the Court of Appeal disregarded constitutional issues nds no support in the record. The issues canvassed in the appellate proceedings were predominantly factual and evidentiary in nature, and the constitutional questions now presented were not distinctly raised as live issues for determination. The mere recitation of constitutional articles in submissions, without their integration as substantive grounds of appeal challenging the constitutional basis of the lower courts' decisions, is insucient to invoke this Court's jurisdiction under Article 163(4)(a) of the Constitution. The references to constitutional rights in the context of a criminal trial, such as the right to a fair trial, were incidental to the application of criminal procedure and evidence law, and did not form the primary subject of interpretation by the superior courts below. v. Consequently, this appeal does not meet the jurisdictional threshold set by Article 163(4)(a) of the Constitution. Having failed to secure certication from the Court of Appeal under Article 163(4)(b) of the Constitution on the basis that the matter is one of general public importance, the issue of certication does not arise. vi. In light of our nding on jurisdiction, it is unnecessary to make a conclusive determination on the other procedural grounds raised in the Preliminary Objection, such as the failure to le a Notice of Appeal within the timelines. vii. This Court in Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others, (Petition 4 of 2012) [2014] KESC 31 (KLR) set the guiding principles on the award of costs. In exercising this discretion, the Court notes that this matter, stemming from a criminal cause, involves an appellant who has pursued his legal remedies through the judicial hierarchy. In the circumstances, and nding no element of vexatiousness in the appellant's approach, we are inclined to order that each party shall bear its own costs. 10. Consequently, for reasons aforesaid, we make the following orders: i. The Notice of Preliminary Objection dated 8th July 2025 led by the respondent is upheld. ii. The Petition of Appeal dated 12th September 2025 be and is hereby struck out for want of jurisdiction. iii. The sum of Kshs. 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the depositor. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/69/eng@2025-12-05 3 iv. Each party to bear its own costs. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF DECEMBER, 2025. ……………………………………………………………… P. M. MWILU DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT ……………………………………………………………… M. K. IBRAHIM JUSTICE OF THE SUPREME COURT ……………………………………………………………… NJOKI NDUNGU JUSTICE OF THE SUPREME COURT ……………………………………………………………… I. LENAOLA W. OUKO JUSTICE OF THE SUPREME COURT ……………………………………………………………… JUSTICE OF THE SUPREME COURT I certify that this is a true copy of the original REGISTRAR, SUPREME COURT OF KENYA https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/69/eng@2025-12-05 4