Peter Kamau Ikigu v Barclays Bank of Kenya Limited & another [2015] KECA 149 (KLR)

The Court applied the guiding principles from Hermanus Phillipus Steyn and P. M. Wamae requiring an applicant to show that the issue to be canvassed transcends the particular case and bears significantly on the public interest. The applicant's contentions about land cartels and imposters concerned matters that the Court of Appeal had never determined, since the dismissed application was interlocutory only. The Supreme Court itself has held that categories of general public importance are not closed but vary with the circumstances of each case.

The Court noted that the Rule 5(2)(b) application only considered whether the applicant had demonstrated entitlement to the orders sought, without determining the merits of the appeal. Relying on Bwana Mohamed Bwana and the Ngoge jurisdictional principles, it held that the Supreme Court cannot usurp the jurisdiction of the Court of Appeal or hear an appeal that has not gone through the chain of Courts in the constitutional set-up. Interlocutory-stage issues therefore cannot form the basis of certification.

The Court adopted the Supreme Court's observation in Daniel Kimani Njihia that the Supreme Court was not conceived as just another layer in the appellate-court structure, and that discretionary decisions originating directly from the Court of Appeal cannot be made the occasion to turn the Supreme Court into a first appellate court, as that would conflict with the terms of the Constitution. The dismissal of the Rule 5(2)(b) application was such a discretionary decision and cannot ground certification.