Njenga Livingstone v Joyce Wanjiku & 2 others [2015] KECA 879 (KLR)

The Court adopted the Steyn criteria: the issue must have substantial, broad-based consequences transcending the parties' litigation interests, must have arisen and been determined in the courts below, and where it is a point of law it must be substantial and bear on the public interest. Determinations of fact between parties are by themselves not a basis for certification. The applicant merely asserted an arguable appeal without framing any issues.

The Court applied Lawrence Nduttu, holding that the applicant must be faulting the Court of Appeal on the basis of constitutional interpretation it used to dispose of the matter. The Court acknowledged the Munya 1 trajectory-of-reasoning principle but found the applicant had not demonstrated any constitutional trajectory in the judgment of 25th November, 2014. Allegations of violation of Article 22(1) were raised for the first time in the application.

Following its own decision in Kanyi Karoki v Karatina Municipal Council, the Court held that the certification jurisdiction under Article 163(4)(b) is restricted and does not include incidental powers such as staying execution. The applicant's claim of irreparable damages was unsupported, and unfairness at the distribution outcome is not per se a basis for leave or stay.

The subordinate court, the High Court and the Court of Appeal had made concurrent findings of fact on whether the respondents were wives of the deceased. Such findings of fact cannot be a basis for granting leave to appeal to the Supreme Court, consistent with the Steyn principle that determinations of fact in contests between parties are not by themselves a basis for certification.