Samuel Kibutha Kamau v Republic through Director of Public Prosecutions [2013] KECA 334 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a convicted man take his case to the Supreme Court, confirming that only issues affecting the public—not private grievances—qualify.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application under Article 163(4) of the Constitution is an application for leave or for certification
- 2.Whether the application should have been originated in the Court of Appeal
- 3.Whether the grounds raised disclose a matter of general public importance warranting certification for appeal to the Supreme Court
Key legal issues
#Characterisation of an application under Article 163(4) of the Constitution
The application is one for certification, not for leave; the Constitution speaks of certification and the Court treats it accordingly
The Constitution does not use the language of leave for appeals from the Court of Appeal to the Supreme Court. The Court relied on its recent decision in Greenfield Investments Ltd v Baber Alibhai Mawji, holding that although an application may be styled as one for leave, the constitutional provision contemplates certification, and the Court treats the application as one for certification.
Origin of certification applications
Certification applications under Article 163(4)(b) should be originated in the Court of Appeal, which is better placed to certify whether a matter of general public importance is involved
Both the Supreme Court and the Court of Appeal have repeatedly held that certification applications must originate in the Court of Appeal, following the Supreme Court's decision in Sum Models Industries v Industrial and Commercial Corporation, which described this as good practice. The Court characterised this as binding good practice, a peremptory postulate, before proceeding to consider the application on its merits.
Test for a matter of general public importance
The applicant must demonstrate issues that transcend the personal and private; a difficult question of law is not enough - it must be an important question of law whose clarification serves the common good
Adopting the test in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held that the importance of a matter must be public in nature and of general significance. Where a point of law is involved, the applicant must show uncertainty in the law such that clarification serves the common good, applying Madan JA's formulation in Murai v Wainaina that such a question accounts for the well-being of society in just proportions.
Application of the general public importance test to the applicant's grounds
The applicant's grounds were factual and peculiar to his case, failing the threshold for certification
The Court summarised the dozen grounds, which concerned the speed of the shooting incident, the deceased's unlicensed pistol, self-defence in the course of duty, and an alleged denial of opportunity to mitigate. It found these complaints mainly factual and peculiar to the applicant's case, concurring with the prosecution that they disclosed no point of general public importance, and declined certification despite sympathy for the applicant.
Legal principles established
#- An application under Article 163(4) of the Constitution is an application for certification, not for leave to appeal
- An application for certification to appeal to the Supreme Court must, as a matter of binding good practice, be originated in the Court of Appeal
- A matter of general public importance must transcend the personal circumstances of the case; ordinary dissatisfaction with a litigation outcome does not qualify
- The threshold for invocation of the certification jurisdiction is deliberately high
Court orders
#- 1.The notice of motion seeking certification to appeal to the Supreme Court is dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- C.A. Cr. A. No. 100 of 2010
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya (application for certification to appeal to the Supreme Court)
Relief refused
#Certification/leave to appeal to the Supreme Court against the Court of Appeal judgment
The applicant's complaints were factual and peculiar to his case and did not raise a matter of general public importance; the threshold for certification is deliberately high
Release on bail pending appeal
Inseparable from the dismissed certification application; the motion was dismissed in its entirety
Costs
We make no order as to 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.
The Constitution does not speak of leave. Rather it speaks of certification.
What he intends to urge must be shown to go beyond the usual grievance, dissatisfaction and disappointment that attends the outcome of litigation. His issues must transcend the personal and private to occupy the general and public space sufficiently to invite the Supreme Court's jurisdiction.
the threshold for invocation of the certification jurisdiction is deliberately high, and property so. The applicant does not meet it.
In the result, we find the notice of motion before us to be unmeritorious and dismiss it in entirety. We make no order as to costs.
Issues in the judgment
#The judgment refers to the Court of Appeal judgment appealed from inconsistently as Criminal Appeal No. 120 of 2010 in the narrative and as Criminal Appeal Number 100 of 2010 in the motion and header
The supporting affidavit is described as both dated 6th March 2013 (the Notice of Motion date) and sworn on 6th March 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kibutha Kamau v Republic through Director of Public Prosecutions [2013] KECA 334 (KLR)", Case Analysis (2013). Criminal Application 1 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/334/eng@2013-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.