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Court of AppealDismissedCivil Application No. SUP. 5 of 2018

Kennedy Nyamumbo Sese v Settlement Fund Trustees & 2others [2019] KECA 135 (KLR)

Court of Appeal
20 November 2019
2,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to send a land boundary dispute to the Supreme Court, confirming only issues of broad public importance can reach that level.

What this practically means

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Executive summary

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The applicant, Kennedy Nyamumbo Sese, applied to the Court of Appeal at Kisumu for certification and leave to appeal to the Supreme Court against the Court of Appeal's judgment at Eldoret (Githinji, Okwengu & J. Mohammed JJ.A) of 7 December 2017, which dismissed his appeal over a boundary dispute concerning 4.5 acres within land parcel Kisii/Gesima Settlement/60, originally allotted and purchased on loan from the Settlement Fund Trustees in 1965. The applicant framed five questions, contending they raised matters of general public importance affecting numerous Settlement Fund Trustees allottees, including whether the SFT could cancel, revoke or rectify allocated land without notice or hearing, and whose duty it is to verify boundaries and acreage on purchase. The respondents opposed, characterising the dispute as private and contractual. Applying the test in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone and the principles restated in Kenya Plantation and Agricultural Workers Union, Pati Limited and Town Council of Awendo, the court (Asike-Makhandia, Kiage & Otieno-Odek JJ.A) held that the questions did not transcend the parties' interests: the boundary-dispute law is settled, the contractual questions disclose no gap in the law, the questions were neither raised nor litigated in the courts below, and the duty to observe natural justice and due process is itself settled. Certification and leave were refused and the applicant was ordered to bear the costs of the application.

Questions the Court framed

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

  1. 1.Whether the questions posited by the applicant for consideration by the Supreme Court raise matters of general public importance warranting certification and leave to appeal under Article 163(4)(b) of the Constitution

Key legal issues

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01

What constitutes a matter of general public importance for certification to the Supreme Court

Holding

The applicant failed to demonstrate that the questions raised transcend the parties' private boundary and contract dispute; certification was refused.

Reasoning

The court applied the Steyn test and restated principles from KPAWU, Pati Limited and Town Council of Awendo. A matter must have substantial, broad-based impact transcending the litigation-interests of the parties and bear on the public interest. The dispute here was a boundary dispute governed by settled law, with contractual questions governed by the sale agreement; no lacuna or gap in the law was shown and the questions were not raised in the courts below.

p. 3
02

Whether novel questions may be framed for the first time on an application for certification

Holding

Questions not raised or litigated in the High Court or Court of Appeal cannot be certified as matters of general public importance.

Reasoning

Relying on Pati Limited and Malcolm Bell, the court held that the Supreme Court's appellate jurisdiction is not invoked to rectify errors on settled law, and one cannot frame novel matters as matters of general public importance when applying for leave. The applicant's five questions were neither raised nor canvassed below.

p. 4
03

Whether the duty to observe natural justice and due process by a statutory body raises a matter of general public importance

Holding

No - it is settled law that any person or administrative body must observe natural justice and due process, so the Supreme Court's time need not be spent on it.

Reasoning

The court held that the right to be heard and due process are well ingrained in Kenya's legal system; determining whether the SFT should observe natural justice does not attract the Supreme Court's input and does not constitute a jurisprudential moment.

p. 5

Legal principles established

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  • To succeed in a certification application under Article 163(4)(b), the applicant must demonstrate that the intended appeal involves a matter of general public importance - one whose impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties and bearing upon the public interest; and the questions must have arisen and been determined in the courts below.

Court orders

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  1. 1.We decline to grant leave and certification to appeal to the Supreme Court.
  2. 2.The applicant is to bear the costs of this application.

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 at Eldoret
Civil Appeal No.5 of 2016
Jurisdiction invoked
Application for certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution

Relief refused

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Certification and leave to appeal to the Supreme Court

The questions posited do not evince matters of general public importance; they are a private boundary and contract dispute with no jurisprudential moment

p. 5

Costs

The applicant is to bear the costs of this application (dismissed with costs to the respondents).

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.

…a matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest.
p. 3Test for matter of general public importance
One cannot frame novel matters as forming matters of general public importance when making an application for leave either in the Court of Appeal or this Court.
p. 4No novel questions on certification
We decline to grant leave and certification to appeal to the Supreme Court.
p. 5Final orders - certification refused
The applicant is to bear the costs of this application.
p. 5Final orders - costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Nyamumbo Sese v Settlement Fund Trustees & 2others [2019] KECA 135 (KLR)", Case Analysis (2019). Civil Application No. SUP. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/135/eng@2019-11-20

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