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Court of AppealDismissedCivil Application No. SUP. 27 of 2019 (UR 19/2019)

Rose Jebor Kipngok v Kiplagat Kotut [2019] KECA 236 (KLR)

Court of Appeal of Kenya
17 October 2019
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to send a land dispute to the Supreme Court, ruling no public importance arose and stay applications must go to the Supreme Court.

What this practically means

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Executive summary

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This Court of Appeal at Eldoret ruling, delivered by Nambuye, Makhandia and Odek JJ.A on 17th October 2019, determined two motions heard together: the applicant Rose Jebor Kipngok's application for certification and leave to appeal to the Supreme Court, coupled with a prayer for stay of execution of the Court's judgment of 7th March 2019 in Civil Appeal No. 31 of 2015; and the respondent Kiplagat Kotut's application to strike out that motion. The applicant's central ground was that two contradictory judgments of the Court over Land Reference No. Plateau/Plateau Block 2/Uasin Gishu/63 created uncertainty in law warranting Supreme Court resolution. The Court, applying the Hermanus Phillipus Steyn test for matters of general public importance under Article 163(4)(b) as restated in the Kenya Plantation and Agricultural Workers Union case, held that the earlier judgment of 14th June 2016 had been set aside on 17th May 2018 and therefore ceased to exist, leaving no conflicting judgments and no uncertainty in law. It further found the applicant had not identified the specific elements of general public importance, that factual contests cannot ground certification, and that the Supreme Court's appellate jurisdiction cannot be invoked on matters of fact. On stay, following Dickson Muricho Muriuki, the Court held it is functus officio after final judgment and that any application for stay of a Court of Appeal judgment must be made to the Supreme Court. Both prayers were refused, the respondent's strike-out motion was allowed, and the applicant was ordered to bear the costs of both applications.

Questions the Court framed

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

  1. 1.Whether the applicant satisfied the principles for certification and leave to appeal to the Supreme Court under Article 163(4)(b), including whether a matter of general public importance was identified
  2. 2.Whether there exist two conflicting judgments of the Court of Appeal over the same subject matter (Land Reference No. Plateau/Plateau Block 2/Uasin Gishu/63) creating uncertainty in the law
  3. 3.Whether the Court of Appeal has jurisdiction to grant stay of execution of its own judgment pending an intended appeal to the Supreme Court
  4. 4.Whether the respondent's application to strike out the application for leave and certification has merit

Key legal issues

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01

Certification threshold under Article 163(4)(b)

Holding

The applicant failed to demonstrate a matter of general public importance; the intended appeal raised no substantial point of law transcending the parties' litigation interests

Reasoning

The Court applied the Steyn test and the KPAWU restatement: an intending appellant must identify concisely the specific elements of general public importance and show a substantial point of law with significant bearing on the public interest. The applicant did not itemize the questions; the grounds attacked the judgment of 7th March 2019 and sought a second bite at the cherry, and factual contests cannot ground certification.

p. 3
02

Existence of contradictory judgments as a ground for certification

Holding

There were no two conflicting judgments; the judgment of 14th June 2016 had been set aside on 17th May 2018 and ceased to exist

Reasoning

The respondent demonstrated that the earlier judgment in Civil Appeal No. 31 of 2015 was set aside by a ruling of 17th May 2018. A judgment so set aside has no legal existence and cannot create contradictory precedent or uncertainty in the law, so the pivotal ground for certification collapsed.

p. 3
03

Jurisdiction to stay execution of the Court's own final judgment

Holding

The Court of Appeal lacks jurisdiction to stay execution of its own judgment after final delivery, being functus officio absent statutory authority

Reasoning

Relying on Dickson Muricho Muriuki, the Court held that once final judgment is pronounced the Court is functus officio and must down its tools. New points of law or circumstances arising after judgment are for the Supreme Court, which is the proper forum for stay pending an intended appeal.

p. 3
04

Striking out the certification application

Holding

The respondent's motion to strike out succeeded by parity of reasoning with the dismissal of the certification application

Reasoning

Having found no merit in the application for leave and certification, the Court held the respondent's Notice of Motion to strike out had merit and allowed it, striking out the applicant's motion with costs.

p. 4

Legal principles established

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  • When a judgment is set aside it ceases to exist in law and cannot found a claim of contradictory precedent for certification purposes
  • The Court of Appeal is functus officio after delivery of final judgment and cannot grant stay of its own judgment pending an intended appeal to the Supreme Court; such applications lie to the Supreme Court
  • A litigant cannot interpret a judgment or insert words into it; a judgment speaks for itself
  • The appellate jurisdiction of the Supreme Court cannot be invoked on matters of fact

Court orders

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  1. 1.Declined to grant leave and certification to appeal to the Supreme Court
  2. 2.Declined to grant stay of execution and implementation of the judgment delivered on 7th March 2019 in Eldoret Civil Appeal No. 31 of 2015
  3. 3.Struck out the applicant's Notice of Motion dated 19th March 2019
  4. 4.Allowed the respondent's Notice of Motion dated 2nd April 2019
  5. 5.Ordered the applicant (Rose Jebor Kipngok) to bear the costs of both applications

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, Eldoret
Civil Appeal No. 31 of 2015
Jurisdiction invoked
Application for certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution and the Court of Appeal's certification jurisdiction

Relief refused

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Leave and certification to appeal to the Supreme Court

No matter of general public importance was identified; the ground of two conflicting judgments failed because the earlier judgment was set aside

p. 4

Stay of execution and implementation of the judgment of 7th March 2019

The Court is functus officio after delivery of judgment; the proper forum for such stay is the Supreme Court

p. 4

Costs

The applicant (Rose Jebor Kipngok) to bear the costs of both applications.

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.

We decline to grant leave and certification to appeal to the Supreme Court.
p. 4Final orders - certification refused
We decline to grant stay of execution and implementation of the judgment of this Court delivered on 7 th March 2019 in Eldoret Civil Appeal No. 31 of 2015.
p. 4Final orders - stay refused
The applicant (Rose Jebor Kipngok) to bear the costs of both applications.
p. 4Final orders - costs
When a judgment is set aside, it ceases to exist.
p. 3Effect of setting aside a judgment
once this Court has pronounced the final judgment, it is functus officio and must down its tools.
p. 4Functus officio
the appellate jurisdiction of the Supreme Court cannot be invoked on matters of fact.
p. 3Scope of Supreme Court appellate jurisdiction

Issues in the judgment

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minor

The judgment inconsistently dates the Court of Appeal decision under challenge: the coram and heading reference an application against the judgment dated 7th March 2019, while the record elsewhere states a judgment of this Court in Civil Appeal No. 31 of 2015 was delivered on 14th June 2016 and set aside on 17th May 2018; the parties dispute whether the 2016 judgment still exists

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, "Rose Jebor Kipngok v Kiplagat Kotut [2019] KECA 236 (KLR)", Case Analysis (2019). Civil Application No. SUP. 27 of 2019 (UR 19/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/236/eng@2019-10-17

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