Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 96 of 2015· [2017] KECA 137 (KLR)

Hassan Musambayi Mbaruku v Nashon Aseka [2017] KECA 137 (KLR)

Court of Appeal
23 November 2017
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to let a land dispute reach the Supreme Court because the case raised no issue of importance beyond the parties themselves.

What this practically means

#

Executive summary

#
The applicant, appearing in person, moved the Court of Appeal at Kisumu for leave (certification) to appeal to the Supreme Court against the Court of Appeal's dismissal of his appeal and, alternatively, for recall, review and setting aside of the judgment and decree in Civil Review Application No. 44 of 2016. The underlying dispute concerned a 1998 suit over non-completion of payment of the purchase price of land parcel Isukha/Shirere/3245, in which the High Court found the full purchase price had been paid and that the land, being within Kakamega Municipality, was not agricultural land requiring Land Control Board consent. The Court of Appeal (Musinga, Gatembu and Murgor, JJA) dismissed the applicant's appeal, holding the trial judge had jurisdiction, and a differently constituted consideration of his review application also failed. In the present ruling, Githinji, Okwengu and Mohammed, JJA considered whether the intended appeal raised a matter of general public importance under Article 163(4)(b) of the Constitution. Applying the Supreme Court's test in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held that the applicant's principal ground - that a High Court Civil Division judge lacked jurisdiction over a land dispute - was anchored on his specific claim, was not raised before the trial court, and did not transcend the parties' litigation interests. Observing that litigation must come to an end, the Court declined certification and dismissed the application with costs.

Key legal issues

#
01

What constitutes a matter of general public importance for certification of an appeal to the Supreme Court under Article 163(4)(b)

Holding

The matter must be one of law or fact whose impacts and consequences are substantial, broad-based, transcend the parties' litigation interests and bear upon the public interest. An issue anchored on the applicant's specific claim, and not raised before the trial court, does not qualify.

Reasoning

Applying the Steyn v Ruscone test, the Court held that the applicant's jurisdictional complaint turned on the specific circumstances of his case - when the Chief Justice directed Kakamega High Court judges to stop hearing land cases - and was raised for the first time on appeal. It therefore could not transcend the parties' interests and did not warrant certification.

p. 3
02

Whether an applicant who has exhausted available avenues should be permitted a further appeal

Holding

Litigation must come to an end; the applicant, having had his suit dismissed, his appeal dismissed, and his review dismissed, was merely seeking another bite of the cherry and certification was properly refused.

Reasoning

The Court characterised the application as an attempt to relitigate concluded matters after all ordinary avenues had been exhausted. The applicant had not even availed a draft memorandum of appeal, so the intended issues could only be gleaned from the motion and supporting affidavit, and none met the public-importance threshold.

p. 4

Legal principles established

#
  • For certification under Article 163(4)(b), the intending appellant bears the burden of demonstrating that the matter carries elements of real public interest and concern, with impacts and consequences that are substantial, broad-based and transcend the litigation interests of the parties

Court orders

#
  1. 1.The Court declined to certify the applicant's intended appeal as raising a matter of general public importance
  2. 2.The application was dismissed with costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 163(5)
  • Constitution of Kenya, 2010Article 166(1)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Section 22 of the 6th Schedule
  • Environment and Land Court Actnull

Cases cited (1)

  • Hermanus Steyn Philipus v Giovanni Gnecchi Ruscone
    [2012] eKLR
On appeal from
Court of Appeal
Civil Review Application No. 44 of 2016
Jurisdiction invoked
Article 163(4)(b) of the Constitution - application for certification that an intended appeal to the Supreme Court involves a matter of general public importance

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hassan Musambayi Mbaruku v Nashon Aseka [2017] KECA 137 (KLR)", Case Analysis (2017). Civil Application No. 96 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/137/eng@2017-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.