Hassan Nyanje Charo v Khatib Mwashetani & 3 others
The bottom line
#First ask the Court of Appeal to certify a public importance appeal before going to the Supreme Court.
What this practically means
#The Supreme Court of Kenya ruled that if you want to appeal a case because it involves a matter of general public importance, you must first ask the Court of Appeal to certify that. The Supreme Court will only review the Court of Appeal's decision on certification. Filing directly in the Supreme Court while the same request is pending in the Court of Appeal will get your case dismissed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the Applicant’s Originating Motion dated 15th April, 2014
- 2.Whether the Applicant’s application is an abuse of the Court process and is against public policy
Key legal issues
#Whether the Supreme Court has jurisdiction to entertain an application for certification for leave to appeal when the same application is pending before the Court of Appeal.
The Supreme Court lacks jurisdiction to entertain such an application because the proper procedure requires that the application first be made in the Court of Appeal, and the Supreme Court only exercises review jurisdiction over the Court of Appeal's decision.
The Court relied on Article 163(4)(b) of the Constitution, which allows either the Court of Appeal or the Supreme Court to certify a matter of general public importance. However, the Court held that good practice requires the application to originate in the Court of Appeal, which is better placed to assess the matter. The Supreme Court's role is limited to reviewing the Court of Appeal's decision on certification, as established in the Sum Model Industries Ltd case and Hermanus Phillipus Steyn case. Since the Applicant's application was still pending in the Court of Appeal, the Supreme Court declined to assume jurisdiction.
Whether the Applicant's application constitutes an abuse of court process.
The Court declined to find that the application was an abuse of court process, noting that the Applicant had a justiciable cause of action and had followed the hierarchy of courts by proceeding from the High Court to the Court of Appeal first.
The Court defined abuse of process as the improper use of court process to obtain an unlawful result or to intimidate. It found that the Applicant had appreciated the sanctity and hierarchy of courts by first filing the certification application in the Court of Appeal. The delay by the Court of Appeal in delivering its ruling did not make the Applicant's subsequent application to the Supreme Court an abuse of process.
Legal principles established
#- An application for certification must first be made in the Court of Appeal, not directly in the Supreme Court.
- The Supreme Court only reviews the Court of Appeal's decision on certification; it does not hear first applications.
- The Supreme Court will not assume jurisdiction if the same certification application is still pending in the Court of Appeal.
- Filing directly in the Supreme Court while the Court of Appeal is still deciding is not automatically an abuse of process if the applicant followed the court hierarchy.
- The Court of Appeal is better placed to assess whether a matter is of general public importance.
- Each party bears its own costs when the application is dismissed for lack of jurisdiction.
Court orders
#- 1.The Originating Motion dated 15th April, 2014 in Civil Application No. 14 of 2014 is hereby dismissed.
- 2.Parties to bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 39 of 2013
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya
Relief refused
#Certification that the intended appeal involves a matter of general public importance
The Court declined to assume jurisdiction because the same application for certification was still pending before the Court of Appeal.
Costs
Parties to bear their own costs.
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.
Consequently, until the Court of Appeal has pronounced itself as to whether to grant or deny certification for leave, we are reluctant to assume jurisdiction.
The Originating Motion dated 15th April, 2014 in Civil Application No. 14 of 2014 is hereby dismissed.
Parties to bear their own costs.
This being an application for leave to appeal against a decision of the Court of Appeal, it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved.
Key timeline
#Practical implications
#Follow proper certification procedure
Always file certification applications for leave to appeal to the Supreme Court first in the Court of Appeal. The Supreme Court will not entertain a direct application while the same matter is pending in the Court of Appeal. Ensure you exhaust the lower court's jurisdiction before seeking review to avoid dismissal.
Understand appeal hierarchy in public importance cases
If your business wants to appeal a decision to the Supreme Court on grounds of general public importance, you must first get certification from the Court of Appeal. Filing directly in the Supreme Court while the Court of Appeal is still deciding will result in dismissal. Plan your litigation strategy to follow the correct sequence.
Know the correct court for your appeal
If you believe your case involves a matter of general public importance and you want to appeal to the Supreme Court, you must first ask the Court of Appeal to certify it. The Supreme Court will only step in if the Court of Appeal refuses or grants certification. Do not skip this step.
Frequently asked questions
#How do I appeal to the Supreme Court of Kenya on a matter of public importance?+
You must first apply to the Court of Appeal for certification that your case involves a matter of general public importance. Only after the Court of Appeal decides can you seek review by the Supreme Court.
What is the procedure for certification for leave to appeal in Kenya?+
File your application for certification in the Court of Appeal. The Court of Appeal will decide whether to certify the matter. If it refuses, you can then apply to the Supreme Court to review that decision.
Can I file a certification application directly in the Supreme Court of Kenya?+
No, not if the same application is already pending in the Court of Appeal. The Supreme Court will dismiss your application for lack of jurisdiction. Always start in the Court of Appeal.
What happens if my certification application is pending in the Court of Appeal in Kenya?+
You cannot file a similar application in the Supreme Court at the same time. The Supreme Court will decline to hear it until the Court of Appeal has made its decision on certification.
Cite this brief
#Cite this brief
Caselaw, "Hassan Nyanje Charo v Khatib Mwashetani & 3 others", Case Analysis (2014). Civil Application 14 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/41/eng@2014-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.