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Supreme CourtDismissedApplication 2 of 2015

Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others

Supreme Court of Kenya
3 December 2015
Kalpana RawalK.H. RawalPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangNjoki Susanna NdunguS. Njoki Ndungu
4,802 words in judgment
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AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Supreme Court won't hear land dispute because issues weren't raised in lower courts first.

What this practically means

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Florence Nyaboke Machani wanted the Supreme Court to hear her land dispute, arguing it was a matter of general public importance. But the Court said no. The issues she raised—like whether a Land Disputes Tribunal can decide on land title—were never argued in the High Court or Court of Appeal. The Supreme Court only reviews cases where those issues were already decided by lower courts. Since they weren't, the application was dismissed, and she must pay the other side's costs.

Executive summary

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The applicant, Florence Nyaboke Machani, sought leave to appeal to the Supreme Court against a Court of Appeal judgment that had upheld a High Court decision dismissing her suit. The suit concerned a land dispute where a Land Disputes Tribunal award had been adopted as a judgment of the subordinate court, leading to the subdivision of the suit land. The High Court had declined to nullify the award, holding that once adopted, it could only be challenged through appeal or judicial review. The Court of Appeal affirmed this decision. The applicant then sought certification from the Court of Appeal that her intended appeal involved matters of general public importance, which was denied. She then applied directly to the Supreme Court. The Supreme Court held that the application was properly before it as a review of the Court of Appeal's denial, despite the applicant's failure to cite Article 163(5) of the Constitution, applying Article 159(2)(d) to avoid procedural technicalities. However, the Court found that the issues the applicant sought to raise, such as the jurisdiction of the Land Disputes Tribunal to determine title, had not been determined by the superior courts and were, in any event, settled law. Consequently, the Court dismissed the application, holding that the intended appeal did not raise matters of general public importance, and awarded costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Court has jurisdiction to determine this matter
  2. 2.whether or not the intended appeal raises issues of general public importance, so as to warrant certification, and leave to appeal to the Supreme Court

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear an application for certification where the applicant cited only Article 163(4)(b) and not Article 163(5).

Holding

The Court has jurisdiction because the application is properly a review of the Court of Appeal's denial of certification, and the omission to cite Article 163(5) is not fatal.

Reasoning

The Court noted that Article 163(4)(b) must be read conjunctively with Article 163(5), and the applicant had previously sought and been denied leave by the Court of Appeal. Applying Article 159(2)(d), the Court held that procedural technicalities should not override substantive justice, and the matter was properly before it as a review.

02

Whether the intended appeal raises matters of general public importance so as to warrant certification.

Holding

The intended appeal does not raise matters of general public importance because the issues framed were not determined by the superior courts and the core issue of the tribunal's jurisdiction is settled law.

Reasoning

The Court found that the issues the applicant sought to raise, such as the jurisdiction of the Land Disputes Tribunal to deal with title, were not the same issues that were before the High Court and Court of Appeal. The High Court had dismissed the suit on the basis that the tribunal's award had been adopted as a judgment of the subordinate court and could not be challenged by way of a declaration. The Court of Appeal upheld that decision. The applicant did not challenge the tribunal's decision through the prescribed procedures (appeal to the Appeals Committee or judicial review). Therefore, the new issues had not evolved through the judicial hierarchy as required by the principle in Peter Oduor Ngoge v. Francis Ole Kaparo & 5 Others. Furthermore, the issue of the tribunal's jurisdiction was already settled by numerous decisions of the High Court and Court of Appeal.

p. 11

Legal principles established

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  • To appeal to the Supreme Court on a matter of general public importance, you must first ask the Court of Appeal for certification.
  • The Supreme Court can only review a Court of Appeal decision on certification, not grant original certification itself.
  • An issue must have been raised and decided by the High Court and Court of Appeal before it can be considered by the Supreme Court.
  • Failing to cite the correct constitutional article (Article 163(5)) is not fatal if you already sought certification from the Court of Appeal.
  • Courts will apply Article 159(2)(d) to avoid procedural technicalities overriding substantive justice.

Court orders

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  1. 1.The application by Notice of Motion, dated 6th March, 2015 is disallowed.
  2. 2.Costs to the respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
S. Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Application No. 65 of 2014
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010; Article 163(5) of the Constitution of Kenya, 2010

Relief refused

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leave to appeal further to the Supreme Court of Kenya against the Judgement and Order of the Court of Appeal delivered on 19th September, 2014 in Civil Appeal No. 184 of 2011

The issues the applicant intends to canvass were not considered or determined by the superior Courts and do not meet the threshold for certification as matters of general public importance.

p. 11

a certificate certifying that the intended appeal involves matters of general public importance

The issues framed by the applicant have not evolved through the judicial hierarchy and the issue of the tribunal's jurisdiction is settled law.

p. 11

Costs

Costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application by Notice of Motion, dated 6th March, 2015 is disallowed.
p. 11 Final Orders
the Court acknowledged that the Supreme Court and the Court of Appeal have a concurrent jurisdiction to certify an intended appeal to the Supreme Court, as one involving matters of general public importance; save that, for orderly practice, one has to first go to the Court of Appeal, and only when dissatisfied by the Order of the Appellate Court, should one come before the Supreme Court under Article 163(5) of the Constitution, for a review.
p. 7 Jurisdiction and Procedure for Certification
The issues as framed by the applicant should, prima facie, be the same issues that the High Court and Court of Appeal had determined, in their substantive Judgements.
p. 9 Requirement for Issues to Evolve Through the Judicial Hierarchy
Consequently, we invoke Article 159(2)(d) of the Constitution: to the effect that procedural technicalities may not override the substantive justice of a matter.
p. 8 Application of Article 159(2)(d)
the issue whether or not the tribunals established under the repealed Lands Disputes Tribunal Act had jurisdiction to determine claims of land ownership, is by no means a 'matter of general public importance'
p. 11 Settled Law Not a Matter of General Public Importance

Key timeline

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Unknown
Land Disputes Tribunal issues award on suit land; award adopted as judgment of subordinate court.
Unknown
High Court dismisses Florence Nyaboke Machani's suit challenging the tribunal award.
Unknown
Court of Appeal upholds High Court decision.
2015-03-06
Florence Nyaboke Machani files application for certification to Supreme Court.
Unknown
Supreme Court dismisses application, holds intended appeal does not raise matters of general public importance.

Practical implications

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For lawyers

Raise all issues in lower courts

When preparing an appeal, ensure every issue you intend to argue at the Supreme Court was explicitly raised and determined by the High Court and Court of Appeal. The Supreme Court will not consider new issues, even if they seem important. Document the record carefully to show each issue evolved through the judicial hierarchy.

For businesses

Finality of tribunal decisions

If a land tribunal award is adopted as a court judgment, you cannot later challenge it by filing a new lawsuit. The only routes are an appeal to the Appeals Committee or judicial review. Businesses involved in land disputes should act quickly within those prescribed procedures, or risk being locked out of further challenges.

For individuals

Challenge tribunal awards correctly

If you disagree with a Land Disputes Tribunal decision, you must appeal to the Appeals Committee or seek judicial review—not file a new case in the High Court. Once the award becomes a court judgment, it's very hard to undo. Get legal advice immediately after the tribunal ruling to preserve your rights.

Frequently asked questions

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How do I appeal a Land Disputes Tribunal decision in Kenya?+

You must appeal to the Appeals Committee within 30 days of the tribunal's decision. Alternatively, you can apply for judicial review at the High Court. Do not file a new lawsuit—courts will dismiss it as an abuse of process.

What is a matter of general public importance in Kenya's Supreme Court?+

It's a legal issue that affects the public broadly, not just the parties. To qualify, the issue must have been raised and decided by the High Court and Court of Appeal first. The Supreme Court will not hear new issues.

Can I go directly to the Supreme Court in Kenya without the Court of Appeal?+

No. For appeals on general public importance, you must first ask the Court of Appeal for certification. Only if they refuse can you apply to the Supreme Court for a review of that refusal.

What happens if I cite the wrong law in my Supreme Court application in Kenya?+

The court may still hear your case if you previously sought certification from the Court of Appeal. Under Article 159(2)(d), procedural technicalities won't override justice. But it's safer to cite the correct article (Article 163(5)).

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others", Case Analysis (2015). Application 2 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/33/eng@2015-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.