Does the Supreme Court of Kenya still recognize any law but its own? That was the challenge Prof. Githu Muigai put to Emeritus Willy Mutunga in the famous debate at the University of Nairobi: that the court tends to answer every legal question by reaching straight for the Constitution, even in areas such as land law, family law, and criminal and civil procedure, where the Constitution itself is not the operative statute. The instinct to ground decisions in the Constitution is understandable from a final court. But Muigai’s caution stands: a maximalist approach, left unchecked, can dilute ordinary legal questions that properly belong to specialized areas of law. I share that concern, and it is worth keeping in mind as I examine the ruling herein.
On 3rd July 2026, a five-judge bench of the Supreme Court delivered a ruling on the latest developments concerning the liquidation of Cytonn Investments and its subsidiaries. The ruling disposed of three applications and one preliminary objection. The Appellants, “Cytonn Investments Partners LLP,” filed the first application seeking conservatory orders pending the hearing and determination of their Appeal. The other two applications were filed by two interested parties, namely CHYS Creditors’ Committee and SBM Bank, seeking to be joined as interested parties in the Petition, while the preliminary objection was filed by the Official Receiver (”Respondent”) as a jurisdictional objection based on article 163(4)(a) of the Constitution. Although the court rejected the preliminary objection and allowed the motions in the end, it would be an understatement to think of this as yet another ordinary ruling in a now protracted insolvency saga of Cytonn, as I demonstrate hereunder.
What the Court Got Right
I begin with what I think the court got right. Granting the conservatory orders was straightforward. The court relied on the principles set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] KESC 38 (KLR) (the Munya Case). In that case, it was held that the Appellants must demonstrate that the appeal or intended appeal is arguable and not frivolous, that unless the orders sought of stay are granted, the appeal or intended appeal would be rendered nugatory were it to succeed, and that it is in the public interest that the orders of stay are granted. For the first limb, the Supreme Court found that the Appellants had raised several constitutional arguments, including on the right to property under Article 40 and the right to fair hearing under article 50 of the Constitution. More importantly, the court emphasized that it would not concern itself with the merits of the case but only with the existence of an argument, which the Appellants had satisfied. For the second limb, the court was inclined toward the preservation of the suit properties, noting that it was the final court whose decision would ultimately determine the parties’ legal position. Without the preservation orders, there was a risk that the suit properties may be valued, sold, and transferred to third parties, thereby rendering the appeal academic. On the public interest aspect, the court recognized the significant interests generated by parties in the proceedings. In some cases, compensation by way of damages may deny stay; however, in cases such as the one herein, reconstruction of titles after land has been sold and transferred through numerous transactions may prove difficult.
On joinder, SBM Bank and CHYS Creditors’ Committee had sufficient direct interest in the outcome of the proceedings, because the orders sought could have an impact on the assets available for recovery and distribution. Additionally, the court would benefit from hearing parties whose interests differed from those of the Official Receiver and the Cytonn businesses.
The Conundrum: When an Insolvency Dispute Became a Constitutional Appeal
This is where things get interesting. Article 163(4)(a) confers appellate jurisdiction on the Supreme Court as a matter of right over matters concerning the interpretation and application of the Constitution. In the present case, the Supreme Court relied on Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] KESC 9 (KLR) (SC Petition No. 3 of 2012) and the Munya Case, which held that an appeal is of right where the Court of Appeal’s reasoning and conclusions leading to the determination of the issue can be said to have taken a trajectory of constitutional interpretation and application, and where the issues of constitutional contestation transcend the court hierarchy. The Supreme Court reasoned that while the substratum of the dispute was a commercial matter involving insolvency proceedings under the Insolvency Act, 2015, the Appellants, in their grounds and submissions, had raised arguments hinging on the interpretation and application of the Constitution. The Appellants there had argued that the rights of bona fide purchasers implicated article 50 of the Constitution. Other parties had also raised articles 36 and 47 when discussing the participation of creditors in the restructuring process. There is a difference, however, between a party invoking a constitutional right under article 40 and a court determining an issue that requires interpretation and application of that article. The question that therefore lingers is whether the Court of Appeal was, in fact, interpreting and applying article 40, or was simply examining whether the High Court, exercising insolvency jurisdiction, had lawfully interpreted its own orders.
There is a clear difference with the Court of Appeal, however. The Court of Appeal concurred with the High Court’s determination and ruled that the primary proceedings involved insolvency. The court relied on the “dominant test” and “predominant test” as espoused in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR). The reasoning in that case is that a matter involving land does not automatically become a land dispute for the purposes of jurisdiction, especially when the primary dispute involves another legal relationship. As a result, it maintained the jurisdiction of the High Court. At the Supreme Court, the characterization changed significantly. The court observed that constitutional issues pertaining to property and fair trial had been raised and adequately taken into consideration to invoke Article 163(4)(a), even though the dispute primarily remained a commercial and insolvency-related one.
How Far Should Bia Tosha Go?
The Supreme Court relied on Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 others [2023] KESC 14 (KLR) to support the idea that a dispute’s commerciality or constitutionality is determined from how the dispute is prosecuted through litigation: the surrounding issues, the facts, the evidence, and the arguments before the court. In my view, if the inquiry is reduced to “Is there a constitutional argument somewhere in the pleadings?” then article 163(4)(a) risks assuming a wider reach than appears to have been envisaged in the Nduttu and Munya cases. It is almost always possible to reframe any issue using constitutional terminology and rights. Article 40 may apply to property, article 47 may become fair notice, and a shareholder dispute may become articles 27 and 36. In my view, the more pertinent question is whether the constitutional provision was essential to the Court of Appeal’s decision, rather than merely relevant to a party’s discontent with the outcome.
That said, the Supreme Court did not completely abandon the constitutional threshold. It reviewed the Court of Appeal’s ruling and observed that the Court of Appeal had raised issues related to article 40 and fair trial. The issue is that the ruling does not adequately explain why the constitutional issues were fundamental enough to satisfy article 163(4)(a), rather than being incidental concerns arising within an insolvency appeal.
The Insolvency Dimension Should Not Vanish
The existence of Article 40 should not, however, cause the insolvency dimension to vanish. Indeed, one of the most intriguing tensions in the decision is the Supreme Court’s recognition that insolvency remains “the crux upon which the appeal is founded alongside the constitutional issues.” That sentence nearly sums up the whole problem. Yet constitutional characterization alone was enough to unlock the Supreme Court’s appellate jurisdiction. However, the insolvency dispute should not be overshadowed by the constitutional questions. The Supreme Court will have to address the relationship between corporate personality, proprietary rights, constitutional property protection, and insolvency powers, rather than merely deciding whether Article 40 was mentioned.
Conclusion
To pen off, I think the Supreme Court was correct to allow parties with a direct stake to be heard and to preserve the appeal’s subject matter. The harder question is the one Muigai’s caution anticipates: is it sufficient to bring what is essentially an insolvency case under Article 163(4)(a) on the strength of a constitutional argument deriving from the treatment of assets owned by linked companies? If the answer is yes without more, this is precisely the dilution he warned against: ordinary commercial and insolvency questions dressed in constitutional language to reach a court that was never meant to hear them as of right. The stakes go beyond Cytonn: where assets held within a connected corporate structure are said to represent money owed to another entity’s creditors, the substantive appeal may ultimately require the court to define the limits of corporate separateness, and, with it, the limits of its own jurisdiction.
Kennedy Baraka is a law graduate and Advocate-designate currently holding over while awaiting admission to the Kenyan Bar. He specializes in constitutional, public policy, and commercial law, with a passion for demystifying legal concepts for the public.