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Court of AppealDismissedCivil Application Sup. No. 21 of 2013· [2014] KECA 247 (KLR)

Kenya Bankers Association v Rose Florence Wanjiru & 2 others [2014] KECA 247 (KLR)

Court of Appeal
14 November 2014
1,911 words in judgment
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The bottom line

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The Court of Appeal refused to certify the Kenya Bankers Association's case for the Supreme Court, confirming that only issues of broad public importance, not private disputes, reach Kenya's highest court.

What this practically means

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Executive summary

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Kenya Bankers Association applied to the Court of Appeal at Nairobi (Mwilu, Ouko and Kiage, JJ.A) for certification under Article 163(4)(b) of the Constitution that its intended appeal to the Supreme Court involved matters of general public importance. The intended appeal targeted the Court of Appeal's decision of 8 October 2013 (Maraga, G.B.M. Kariuki and J. Mohammed, JJ.A), which overturned Mwera, J.'s striking out of a representative suit by Rose Florence Wanjiru on behalf of bank customers, holding that leave of court under Order 1 Rule 8 of the Civil Procedure Rules is not required before instituting a representative suit. The applicant proposed five grounds, including the principles guiding the High Court and Court of Appeal on representative suits under Order 1 Rule 8(1) of the 2010 Rules, and counsel invoked Article 22(2) of the Constitution and section 4 of the Consumer Protection Act on class actions. The Court applied the settled Supreme Court guidelines, chiefly those in Hermanus Phillipus Steyn v Giovanni Guecchi-Ruscone, and held that the certification jurisdiction cannot operate as an appeal from the Court's own decision. It found that the proposed questions did not transcend the circumstances of the case, raised no substantial point of law with significant public bearing, involved no demonstrated uncertainty or contradictory precedents, and that the 2010 Order 1 Rule 8(1) was never before the courts below. Concerns about time and expense were held irrelevant. The application was dismissed with costs.

Key legal issues

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01

Whether the requirements for certification under Article 163(4)(b) were met

Holding

The application failed because the question of whether leave is required for a representative suit is not a substantial point of law of general public importance; it does not transcend the facts of the case and no contradictory precedents or uncertainty in the law were shown.

Reasoning

The Court applied the settled guidelines from the Supreme Court, notably Hermanus Phillipus Steyn v Giovanni Guecchi-Ruscone. Certification requires an issue of general public importance transcending the particular case, a substantial point of law with significant public bearing, arising and judicially determined below. The representative-suit leave question was held settled, no contradictory precedents were shown, and the current Order 1 Rule 8(1) was not before the courts below. Apprehension about time and money expended is irrelevant to certification.

p. 3
02

Scope of the certification jurisdiction

Holding

The certification jurisdiction does not permit review of whether the Court of Appeal erred; it cannot be used as an appeal from the Court's own decision.

Reasoning

The Court reiterated the firm line of Supreme Court and Court of Appeal authority that certification is confined to identifying matters of general public importance, not rectifying errors in settled law. The appellate jurisdiction of the Supreme Court is invoked only per the Constitution and the law, and certification must not become routine for ordinary cases however complex.

p. 3

Legal principles established

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  • An application for certification under Article 163(4)(b) is not an appeal from the Court of Appeal's own decision; the jurisdiction does not extend to examining whether the Court was in error in the decision sought to be challenged.
  • For certification, the intending appellant must show that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest, and that any point of law is substantial and was judicially determined below.
  • Determinations of fact between parties are not, by themselves, a basis for granting certification for an appeal to the Supreme Court.
  • Only cardinal issues of law or issues of jurisprudential moment merit the further input of the Supreme Court.

Court orders

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  1. 1.The application for certification that a matter of general public importance is involved in the intended appeal to the Supreme Court is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 22(2)
  • Civil Procedure RulesOrder 1 Rule 8 (repealed rules and Order 1 Rule 8(1) of the 2010 Rules)
  • Consumer Protection ActSection 4

Cases cited (4)

  • Hermanus Phillipus Steyn V. Giovanni Guecchi - Ruscone
    S.C. Application No. 4 of 2012
  • Peter Oduor Ngoge V. Francis Ole Kaparo & 5 others
    S.C. Petition No. 2 of 2012
  • Malcom Bell V. Daniel Toroitich Arap Moi & others
    S.C. Application No. 1 of 2013
  • Koinange Investments & Development Ltd Vs. Robert Nelson Ngethe
    C.A. No. 15 of 2012
On appeal from
Court of Appeal
Civil Appeal No. 216 of 2004 (referred to in the ruling also as Civil Appeal No. 214 of 2014)
Jurisdiction invoked
Article 163(4)(b) of the Constitution (certification that a matter of general public importance is involved in an intended appeal to the Supreme Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Bankers Association v Rose Florence Wanjiru & 2 others [2014] KECA 247 (KLR)", Case Analysis (2014). Civil Application Sup. No. 21 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/247/eng@2014-11-14

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