Andrew Ireri Njeru, Motokaa Nthautho, Nathan Maganjo & 3 others v Attorney General Mwaniki Munyi & 55 others (Civil Application 7 of 2014) [2015] KECA 873 (KLR)
The bottom line
#The Court of Appeal refused to let a land dispute reach the Supreme Court because the applicants showed no issue of general public importance, and it cannot stay its own judgment.
What this practically means
#Executive summary
#Key legal issues
#Test for certification of a matter of general public importance under Article 163(4)(b)
The intending appellant must show that the issue transcends the circumstances of the particular case, bears on the public interest, and arose in and was determined by the courts below; mere apprehension of miscarriage of justice or unresolved factual disputes do not qualify
The court adopted the Supreme Court's Steyn principles: the intending appellant must concisely identify the specific elements of general public importance, the question of law must have arisen below and been judicially determined, and determinations of fact between parties are not by themselves a basis for certification. The applicants identified no such issue; their grounds were factual allegations requiring proof.
Whether a constitutional appeal under Article 163(4)(a) was available
No issue of constitutional interpretation or application was canvassed or determined in the High Court or Court of Appeal, so an appeal as of right under Article 163(4)(a) could not lie
Following Lawrence Nduttu, the appeal must originate from a Court of Appeal case where contestation revolved around the interpretation or application of the Constitution. The court perused its own ruling of 16 December 2014 and found nowhere that constitutional issues were canvassed, and the applicants alleged Article 22(1) violation only as a bare assertion, not as an issue determined below.
Power of the Court of Appeal to stay execution of its own judgment on an application for leave to appeal
The Court lacks power to stay execution of a judgment it has already delivered when seized only of a leave application under Article 163(4)(b)
Relying on Kanyi Karoki v Karatina Municipal Council, the court held that once judgment has been passed, only the restricted jurisdiction of considering leave applications under Article 163(4)(b) remains; the applicants also failed to demonstrate what irreparable damage they would suffer, and a mere allegation of unfairness is not a proper basis for granting leave.
Burden of proof on an applicant seeking certification
The onus falls on the applicant to demonstrate specific matters of general public importance carrying elements of real public interest and concern
Applying Steyn, the court reiterated that the applicant has an obligation to identify and concisely set out the specific elements of general public importance attributed to the matter. The applicants merely asserted an arguable appeal with a high chance of success, which is the test for intermediate appeals, not for certification to the Supreme Court.
Legal principles established
#- Disputed allegations of fact, and determinations of fact in contests between parties, cannot form the basis of leave to appeal to the Supreme Court, which is not a court of first instance
- For an appeal to lie under Article 163(4)(a), the constitutional interpretation or application relied on must have arisen and been determined in the Court of Appeal proceedings themselves
- Once it has passed judgment, the Court of Appeal has no power to stay execution of that judgment when dealing with an application for leave to appeal to the Supreme Court
- A party whose appeal has been struck out as incompetent has the liberty to restart the appellate process; a second or further application for leave to extend time is not res judicata
Court orders
#- 1.The Notice of Motion dated 29th December, 2014, seeking leave to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Court of Appeal of Kenya at Nyeri
- Civil Appeal (Application) No. 47 of 2010
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010 - certification of a matter of general public importance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Ireri Njeru, Motokaa Nthautho, Nathan Maganjo & 3 others v Attorney General Mwaniki Munyi & 55 others (Civil Application 7 of 2014) [2015] KECA 873 (KLR)", Case Analysis (2015). Civil Application No. Sup. 7 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/873/eng@2015-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.