Geoffrey Wambanda Wandabusi & another v Attorney General for and on Behalf of the Commissioner for Lands & 3 others
The bottom line
#Supreme Court dismissed appeal over private land, ruling it lacked general public importance.
What this practically means
#The Supreme Court of Kenya rejected an application to appeal a land dispute. The court said the case was about private rights, not public land, so it did not qualify as a matter of general public importance. However, the court excused the applicants' late filing because they represented themselves and the delay was minor. The application was dismissed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for review of certification was filed out of time and if so, the consequences thereof
- 2.Whether the judgment of the Court of Appeal was a nullity for having been delivered by a bench that included a judge who did not participate in the hearing of the appeal
- 3.Whether the intended appeal involves a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the application for review of certification was filed out of time and if so, the consequences
The application was filed 10 days out of time, but the Court exercised its discretion to excuse the delay as it was not inordinate and the applicants were self-represented.
The ruling on certification was made on 16th November 2017, and the application for review was filed on 20th December 2017, which was 10 days beyond the 14-day period under Rule 24(2). The Court considered that the applicants were based in Bungoma County, the ruling was issued in Eldoret, and they were acting in person. The delay was not inordinate, and the Court also excused the failure to file written submissions initially, as directions were later issued by the Deputy Registrar.
Whether the judgment of the Court of Appeal was a nullity for having been delivered by a bench that included a judge who did not participate in the hearing
The Court could not determine this issue due to insufficient evidence, and in any case, a judge who did not participate in the hearing of the appeal can still independently consider an application for certification.
The applicants only provided a cause list, which does not prove that a judge did not participate. More substantive evidence like court proceedings or judges' notes was required. Furthermore, even if true, the judge considering certification is not required to have heard the appeal on its merits, as certification is confined to framed issues of general public importance.
Whether the intended appeal involves a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
The intended appeal does not involve a matter of general public importance as it primarily concerns private rights over the suit property, not public land.
The Court reviewed the pleadings and judgments from the High Court and Court of Appeal. The applicants claimed the land was public land, but the Court of Appeal found it was a dispute over private interests of the deceased. The Supreme Court agreed, noting that the resolution of the appeal would revolve around the applicants' rights over the suit property, not the County Council's rights. The applicants failed to demonstrate a legal question transcending the present litigation.
Legal principles established
#- A delay in filing a review application can be excused if it is not inordinate and the applicant is self-represented.
- A judge who did not hear the main appeal can still decide on certification for appeal to the Supreme Court.
- To get certification, the appeal must raise a legal question affecting many people or public interest, not just private rights.
- A private land dispute does not meet the threshold for general public importance under Article 163(4)(b).
- Insufficient evidence of a procedural irregularity cannot be used to challenge a court judgment.
Court orders
#- 1.The Originating Motion filed on 20th December 2017 is hereby disallowed.
- 2.Each party to bear their respective costs in this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Eldoret
- Civil Appeal No. 118 of 2017
- Jurisdiction invoked
- Article 163(5) of the Constitution
Relief refused
#Review of the Court of Appeal's refusal to certify the intended appeal as involving a matter of general public importance
The applicants failed to demonstrate that the intended appeal raises a matter of general public importance beyond the private interests of the parties.
Costs
Each party to bear their respective costs in this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we exercise our discretion to excuse the delay in filing the application out of time which delay is in any event not inordinate
the fact that a judge who did not participate in the hearing and determination of an Appeal on its merits, does not impugn the Decision/Ruling in respect of an Application for certification
the applicants have to demonstrate satisfactorily that there is a legal question the subject matter of which transcends the present litigation
The Originating Motion filed on 20th December 2017 is hereby disallowed.
Each party to bear their respective costs in this application.
Key timeline
#Practical implications
#Focus on public interest, not private rights
When seeking Supreme Court certification, lawyers must clearly demonstrate that the legal question transcends the parties and affects a large segment of the public. Mere private land disputes, even if involving claims of public land, will not suffice. Also, consider filing review applications promptly; the court may excuse minor delays for self-represented litigants, but not for legal professionals.
Supreme Court unlikely for land disputes
Businesses involved in land disputes should expect that the Supreme Court will only hear appeals that raise issues of general public importance, such as constitutional interpretation or widespread impact. Private land ownership cases are typically resolved at the Court of Appeal. Plan litigation strategy accordingly, and do not rely on Supreme Court certification for standard property disputes.
Self-representation may excuse minor delays
If you are representing yourself in court, a short delay in filing documents may be excused if it is not excessive and you have a reasonable explanation. However, this does not guarantee success on the merits. Always file on time if possible, and understand that the Supreme Court reserves certification for cases that affect the public, not just your personal interests.
Frequently asked questions
#What is a matter of general public importance in Kenya for Supreme Court appeal?+
A matter of general public importance is a legal question that goes beyond the parties involved and affects a large number of people or the public interest. The Supreme Court will only hear such appeals under Article 163(4)(b) of the Constitution. Private land disputes usually do not qualify.
How do I appeal to the Supreme Court of Kenya from the Court of Appeal?+
You must first apply to the Court of Appeal for certification that the case involves a matter of general public importance. If the Court of Appeal refuses, you can apply to the Supreme Court for review within 14 days under Rule 24(2) of the Supreme Court Rules. The Supreme Court may excuse a short delay.
Can a judge who did not hear the original appeal decide on certification in Kenya?+
Yes. The Supreme Court has ruled that a judge who did not participate in hearing the appeal on its merits can still independently consider an application for certification. This is because certification is confined to the framed issues and does not require delving into the merits of the appeal.
What happens if I file a review application late in the Supreme Court of Kenya?+
The Supreme Court has discretion to excuse a delay that is not inordinate, especially if you are self-represented. In this case, a 10-day delay was excused. However, it is best to file within the 14-day period. If you are represented by a lawyer, the court may be less forgiving.
Cite this brief
#Cite this brief
Caselaw, "Geoffrey Wambanda Wandabusi & another v Attorney General for and on Behalf of the Commissioner for Lands & 3 others", Case Analysis (2019). Originating Motion 23 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/4/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.