Edward Kings Onyancha Maina v Turkana Drilling Consortium (K) Ltd & 4 others [2014] KECA 536 (KLR)
The bottom line
#The Court of Appeal refused to let a businessman take his oil dispute to Kenya's Supreme Court, ruling his concerns were personal, not of public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the application meets the Article 163(4)(b) threshold of general public importance
The application fails: the issues arise from a ruling striking out a notice and record of appeal for non-compliance with mandatory Court of Appeal Rules and from lack of locus standi, and are mundane, long-settled issues personal to the applicant that do not warrant certification.
The court applied the Supreme Court's test in Hermanus Phillippus Steyn v Giovanni Gnecchi-Ruscone, which requires that a matter of general public importance have substantial, broad-based impact transcending the parties' litigation interests. Striking out a notice of appeal for breach of mandatory Rule 82, and locus standi to sue on behalf of a company without authority, are settled issues. The applicant should instead have sought leave to appeal out of time. Certification cannot be used to perpetuate litigation or stem abuse of process by bypassing competent superior courts.
The constitutional basis for applications for certification under Rule 21 of the Supreme Court Rules and Section 15 of the Supreme Court Act
Although the applicant did not cite Article 163(4) of the Constitution, Rule 21 of the Supreme Court Rules and Section 15 of the Supreme Court Act draw their validity from Article 163(4) of the Constitution, so the application is predicated on Article 163(4)(b).
The court located its jurisdiction in Article 163(4)(b) notwithstanding that the applicant cited only subsidiary legislation. It observed that had the applicant genuinely claimed violation of his constitutional rights, an appeal would lie as of right under Article 163(4)(a) without needing leave, which made clear his application was predicated on the certification route under Article 163(4)(b).
Legal principles established
#- An applicant seeking certification under Article 163(4)(b) must show that the matter's impact and consequences are substantial, broad-based, transcend the litigation interests of the parties and bear upon the public interest.
- Mere apprehension of a miscarriage of justice in a matter apt for resolution in lower superior courts is not a proper basis for certification to the Supreme Court.
- The Court of Appeal acts as a constitutional sieve for matters intended to proceed to the Supreme Court, and matters competently handled by other superior courts cannot creep to the Supreme Court disguised as matters of general public interest.
- The Supreme Court was not created as just one more tier in the judicial hierarchy for perpetuation of litigation.
Court orders
#- 1.The application for certification to appeal to the Supreme Court is dismissed
- 2.The applicant shall pay costs to the respondents
- 3.This ruling applies mutatis mutandis to Sup. No. 14 of 2013
- On appeal from
- Court of Appeal
- Civil Appeal (Application) No. 64 of 2011
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya 2010 (certification that a matter of general public importance is involved), operationalised by Rule 21 of the Supreme Court Rules and Section 15 of the Supreme Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Kings Onyancha Maina v Turkana Drilling Consortium (K) Ltd & 4 others [2014] KECA 536 (KLR)", Case Analysis (2014). Civil Application No. SUP 13 of 2013 (UR 6/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/536/eng@2014-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.