Langata Development Co. Limited v Mary Wanjiru Dames [2019] KECA 494 (KLR)
The bottom line
#The Court of Appeal refused Langata Development permission to appeal to the Supreme Court because it never filed a Notice of Appeal and raised no public importance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a valid Notice of Appeal was filed so as to confer jurisdiction on the Court to entertain the application
- 2.Whether the intended appeal raises matters of general public importance warranting certification and leave to appeal to the Supreme Court
- 3.Whether the Court should grant an order of preservation of the suit property pending the intended appeal to the Supreme Court
Key legal issues
#Jurisdiction premised on a Notice of Appeal
No Notice of Appeal had been filed or lodged at either the Court of Appeal or the Supreme Court, so the Court lacked jurisdiction to entertain the certification application.
The Court examined the record and found the purported Notice of Appeal dated 13th March 2019 was never lodged, endorsed, or paid for at either registry, and no extension of time was sought. Citing Salat, it held a notice of appeal is a jurisdictional pre-requisite, and citing Lillian S, it was obliged to down tools.
Certification for appeal to the Supreme Court under Article 163(4)(b)
Even assuming jurisdiction, no matter of general public importance was demonstrated; the questions raised concerns settled law and the particular dispute.
Applying the Steyn and Kefhau principles, the Court held the applicant failed to identify a substantial point of law transcending the parties' litigation interests. Questions on survey procedure, remedies for mutual mistake, and sanctity of title under the repealed RTA are settled and not of special jurisprudential moment.
Power to stay or preserve after final judgment
Once the Court of Appeal pronounces final judgment it becomes functus officio and lacks power to grant stay or preservation orders pending a Supreme Court appeal.
Following Dickson Muricho Muriuki, the Court held that absent statutory authority the functus officio principle prevents re-opening a decided case, and the proper forum for post-judgment stay pending a Supreme Court appeal is the Supreme Court itself.
Legal principles established
#- A Notice of Appeal is a jurisdictional pre-requisite; without one on record the Court of Appeal has no jurisdiction to entertain an application for certification and leave to appeal to the Supreme Court.
- After final judgment the Court of Appeal is functus officio and cannot stay its own orders or grant preservation orders pending an appeal to the Supreme Court; such applications lie to the Supreme Court.
- A dispute between private citizens is not, by that fact alone, incapable of raising a matter of general public importance.
Court orders
#- 1.The Court declined to grant leave and certification to appeal to the Supreme Court
- 2.No preservation or stay order was granted
- 3.The applicant to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 283 of 2016
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (application for certification and leave to appeal to the Supreme Court)
Relief refused
#Certification and leave to appeal to the Supreme Court
No matter of general public importance was identified; the law on the questions posited is well settled and the issues transcend no public interest
Deeming the Notice of Appeal dated 13th March 2019 as duly filed and served
No Notice of Appeal was ever filed at the Court of Appeal or Supreme Court, and without it the Court had no jurisdiction
Preservation order over the suit property
After final judgment the Court of Appeal is functus officio; the proper forum for stay pending a Supreme Court appeal is the Supreme Court itself
Costs
The applicant to bear the costs of the application (dismissed with costs)
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.
In the absence of a Notice of Appeal on record, we find we have no jurisdiction to entertain the instant application for leave and certification to appeal to the Supreme Court.
Jurisdiction is everything. Without it, a court has no power to make one more step.
A matter does not become or cease to be of general public importance or to involve public interest simply because an applicant or respondent is a private citizen and not a public entity.
Any application for stay of the judgment of this Court or a preservation order pending the hearing of an intended appeal to the Supreme Court should be made before the Supreme Court.
a) We decline to grant leave and certification to appeal to the Supreme Court. b) No preservation or stay order is granted. c) The applicant to bear the costs of this application.
Issues in the judgment
#The judgment states the impugned Court of Appeal judgment was delivered on 26th February 2019 in one passage and 28th February 2018 in another
The Notice of Appeal is dated 12th March 2019 in the motion and 13th March 2019 in the body of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Langata Development Co. Limited v Mary Wanjiru Dames [2019] KECA 494 (KLR)", Case Analysis (2019). Civil Application No. SUP. 5 of 2019 (UR. 4/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/494/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.