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Court of AppealDismissedCivil Application No. 125 of 2015

Grace Samson Komen v William Kiprop Komen, Rachael Chepng'eno, Mohamed Komen & Sote Komen

Court of Appeal
23 February 2017
2,148 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to send a family inheritance dispute to the Supreme Court, ruling that ordinary succession disagreements do not raise matters of general public importance.

What this practically means

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Executive summary

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The applicant, the unsuccessful appellant in Civil Appeal No. 210 of 2013 (Gatembu, M'Inoti & J. Mohammed JJA, delivered 13 February 2015), moved the Court of Appeal at Nakuru under Article 163(4)(b) of the Constitution, Rule 24(1) of the Supreme Court Rules, 2012 and Rule 42 of the Court of Appeal Rules, 2012 for certification that her intended appeal to the Supreme Court involves matters of general public importance. She proposed two issues: the extent to which courts may deviate from the ascertainable wishes of a deceased person in distributing his estate, and whether estate liabilities should be paid from the share of one house or from the gross assets. The respondents and the interested party opposed, contending the application sought to clothe private law disputes with public interest and to delay distribution of a polygamous deceased's estate. Applying the ten principles distilled in Kiran Chandubhai Patel v Transworld Safaris Ltd and the Supreme Court's guidance in Sum Model Industries Ltd v ICDC on the proper forum, the Court (Nambuye, G.B.M. Kariuki and Kiage JJA) held the proposed issues to be common, run-of-the-mill succession questions decided daily by magistrates' courts, the High Court and the Court of Appeal, presenting neither difficulty nor ambiguity and not transcending the case. Certification was refused and the application dismissed with costs on 23 February 2017.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal to the Supreme Court involves matters of general public importance warranting certification under Article 163(4)(b)

Key legal issues

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01

Whether the two proposed issues (deviation from a deceased's ascertainable wishes; payment of estate liabilities from one house or gross assets) raise matters of general public importance

Holding

They do not; they are ordinary succession questions of daily occurrence in the courts, not novel or jurisprudentially taxing questions requiring the Supreme Court's norm-setting pronouncement

Reasoning

The court applied the ten-pronged threshold distilled in Kiran Chandubhai Patel v Transworld Safaris Ltd, holding that the proposed issues are common, run-of-the-mill succession matters decided routinely by magistrates' courts, the High Court and the Court of Appeal. They present neither difficulty nor ambiguity, do not transcend the instant case, and amount only to a private, personal grievance by the applicant.

p. 4
02

The proper forum for an application for certification under Article 163(4)(b)

Holding

The application should be presented first to the Court of Appeal, following the Supreme Court's guidance in Sum Model Industries Ltd

Reasoning

Relying on the Supreme Court's guidance in Sum Model Industries Ltd v ICDC, the court confirmed that the Court of Appeal, having been seized of the matter and assessed the facts and legal arguments, is best placed to certify whether a matter of public importance is involved; a dissatisfied applicant may seek review under Article 163(5).

p. 3

Legal principles established

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  • Certification of an appeal to the Supreme Court under Article 163(4)(b) requires a discernible matter of general public importance and is granted only in exceptional cases
  • Applications for certification as of first instance should ordinarily be presented to the Court of Appeal, which is better placed to assess whether a matter of public importance is involved

Court orders

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  1. 1.The application for certification of the intended appeal to the Supreme Court is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya at Nakuru
Civil Appeal No. 210 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya; Rule 24(1) of the Supreme Court Rules, 2012; Rule 42 of the Court of Appeal Rules, 2012

Relief refused

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Certification of the intended appeal to the Supreme Court as involving matters of general public importance

The proposed issues are common run-of-the-mill succession matters that do not transcend the particular case

p. 4

Costs

The application is dismissed with costs (costs awarded against the applicant).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The key that opens our certification of an intended appeal as deserving of escalation to the Supreme Court is the presence or existence of a matter of general public importance without which an applicant hopes in vain to receive a ticket to the apex Court.
p. 3certification threshold
That Court's existence was never intended to provide an additional tier for the pursuit of appellate justice in any and every case.
p. 3finality and the Supreme Court's role
They do not transcend the limited scope of the instant case to have a more general significance. They are no more than an expression of a private, personal grievance by the applicant. And they do not deserve certification.
p. 4private grievance vs public importance
The application is devoid of merit and it is accordingly dismissed with costs.
p. 4final orders

Issues in the judgment

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minor

Coram lists Nambuye, G.B.M. Kariuki & Kiage JJA but the judgment under review was by Gatembu, M'Inoti & J. Mohammed JJA - different panels, correctly distinguished

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Samson Komen v William Kiprop Komen, Rachael Chepng'eno, Mohamed Komen & Sote Komen", Case Analysis (2017). Civil Application No. 125 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/778/eng@2017-02-23

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