Glencore Energy (u.k.) Limited v Kenya Pipeline Company Limited

The Court of Appeal held that the doctrines of incorporation by reference, ownership, bailee by attornment and assignment would only be relevant on the factual setting pleaded by the applicant. The appellate court had rejected that factual setting and made independent findings on the true character of the transactions. For the legal principles to apply, those factual findings would have to be reversed, so the application is essentially an appeal on facts, not a substantial point of law of general public importance.

The Court found that the gist of the applicant's complaint on illegality was the alleged erroneous application of the principle to the circumstances of the case. The application of the illegality principle was premised on the appellate court's findings of fact, which were contested between the parties. Such a complaint concerns the misapprehension of facts and law and an alleged miscarriage of justice, not a conflicting principle of law transcending the case.

The Court restated the principles in Hermanus Phillipus Steyn as approved by the Supreme Court: where certification raises a point of law, it must be a substantial point whose determination significantly bears on the public interest, and it must have arisen and been determined in the courts below. In commercial transactions, the amount at stake or difficulty of the question is not the test.