Rose Jebor Kipngok v Kiplagat Kotut [2019] KECA 236 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.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.Whether the respondent's application to strike out the application for leave and certification has merit
Key legal issues
#Certification threshold under Article 163(4)(b)
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
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.
Existence of contradictory judgments as a ground for certification
There were no two conflicting judgments; the judgment of 14th June 2016 had been set aside on 17th May 2018 and ceased to exist
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.
Jurisdiction to stay execution of the Court's own final judgment
The Court of Appeal lacks jurisdiction to stay execution of its own judgment after final delivery, being functus officio absent statutory authority
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.
Striking out the certification application
The respondent's motion to strike out succeeded by parity of reasoning with the dismissal of the certification application
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.
Legal principles established
#- 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
#- 1.Declined to grant leave and certification to appeal to the Supreme Court
- 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.Struck out the applicant's Notice of Motion dated 19th March 2019
- 4.Allowed the respondent's Notice of Motion dated 2nd April 2019
- 5.Ordered the applicant (Rose Jebor Kipngok) to bear the costs of both applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
The applicant (Rose Jebor Kipngok) to bear the costs of both applications.
Quotable passages
#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.
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.
The applicant (Rose Jebor Kipngok) to bear the costs of both applications.
When a judgment is set aside, it ceases to exist.
once this Court has pronounced the final judgment, it is functus officio and must down its tools.
the appellate jurisdiction of the Supreme Court cannot be invoked on matters of fact.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.