Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
The bottom line
#Kenya's Court of Appeal refused to let a commercial dispute reach the Supreme Court, ruling that private contract fights don't raise issues of general public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the formulated matters of general public importance arose from the Court of Appeal's determination
The formulated issues of law did not arise from the Court of Appeal's determination and were extraneous to it; the matters determined were substantially factual with concurrent findings.
Both the High Court and the Court of Appeal made concurrent findings of fact that the respondent earned his commission and had been paid. The only issue of law (strict proof of special damages) was resolved by a finding that the claim was contractual, and the applicant's formulated questions on damages and Hassan v. Hunt did not flow from that determination.
The proper test for certification under Article 163(4)(b)
The constitutional test is that a matter of general public importance must be involved; no other test may be applied, and the phrase is not confined to questions of law.
The Court surveyed comparative regimes (Privy Council, England, Ireland, Uganda) and held that Article 163(4)(b) refers merely to 'a matter', not to questions of law of great or exceptional public importance, and does not distinguish criminal and civil matters. The true meaning will ultimately depend on the Supreme Court's construction.
Distinction between certification to the Supreme Court and leave to appeal to an intermediate court
The test for certification to a court of last resort differs from leave to appeal to an intermediate court; the latter concerns realistic chances of success, the former filters for general public importance.
Leave to appeal from the High Court to the Court of Appeal primarily corrects injustices and errors of fact or law where the appeal has realistic prospects. Certification to the Supreme Court instead screens for matters of general public importance, so authorities on intermediate leave (such as Iran Nabuvat) are inapplicable.
Procedure for certification applications in the Court of Appeal
Pending specific rules, certification applications should be made by notice of motion supported by affidavit; the present application was properly before the Court.
The Supreme Court Rules 2011 are silent on where certification should originate, and no rules govern the Court of Appeal's handling of such applications. The Court applied existing formal application procedures (rules 42 and 43 of the Court of Appeal Rules; rule 21(1) of the Supreme Court Rules) and held the motion properly filed.
Legal principles established
#- An application for certification under Article 163(4)(b) should be made by notice of motion supported by one or more affidavits in accordance with the Court's practice.
- The absence of rules regulating certification applications does not affect the jurisdiction of the Court, which is conferred by Article 163(4)(b).
- The matter sought to be certified must arise from the determination of the Court of Appeal, not from arguments or discussions at the hearing.
- The importance of the matter must be public in nature and transcend the circumstances of the particular case.
- Certification is a genuine filtering process ensuring only appeals with elements of general public importance reach the Supreme Court.
- A certificate should be granted for appeals from interlocutory rulings only in exceptional cases, per section 16(3) of the Supreme Court Act.
Court orders
#- 1.The Court declined to grant a certificate that a matter of general public importance is involved in the intended appeal
- 2.The application was dismissed with costs to the respondent
- On appeal from
- Court of Appeal
- CA. No. 171 of 2009
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okiya Omtatah Okoiti v Director of Public Prosecutions[2020] KEHC 1824 (KLR)12 Nov 2020
- Daniel Kimani Njihia v Francis Mwangi Kimani & The District Land Registrar – Thika[2014] KECA 834 (KLR)14 Feb 2014applied
- Eliezer Mwangi v Jacinta Nyambura Kariuki[2013] KEHC 6290 (KLR)17 Jul 2013applied
Cite this brief
#Cite this brief
Caselaw, "Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone", Case Analysis (2012). Civil Application 4 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/259/eng@2012-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.