Southern Shield Holdings Ltd & 2 others v Delphis Bank Ltd & another (Civil Application Sup 10f (UR 720) of 2018) [2019] KECA 644 (KLR)
The bottom line
#The Court of Appeal refused to let a loan dispute go to the Supreme Court, ruling that private commercial disagreements are not matters of general 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 the intended appeal raises a matter of general public importance warranting certification and leave to appeal to the Supreme Court under Article 163(4)(b)
- 2.Whether there are conflicting decisions of the Court of Appeal on proper service of a demand letter on a guarantor who doubles as a director of the borrowing company, creating uncertainty in law
- 3.Whether the applicant demonstrated a substantial point of law with a significant bearing on the public interest
- 4.Whether the Court of Appeal has jurisdiction to stay its own judgment pending an intended appeal to the Supreme Court, having regard to the functus officio doctrine
Key legal issues
#Certification for appeal to the Supreme Court under Article 163(4)(b)
The applicant failed to demonstrate a matter of general public importance or a substantial point of law; the dispute was a private commercial loan matter.
Applying the Steyn test and the enumerated principles in the Kefhau case, the Court held that the law on service is well settled, that no uncertainty had been shown, and that a private commercial loan dispute between lender, borrower and guarantor does not bear on the public interest. Specific elements of general public importance must be concisely set out, not merely enumerated.
Jurisdiction to stay the Court of Appeal's own judgment pending a Supreme Court appeal
The Court of Appeal becomes functus officio upon delivery of final judgment and cannot stay it absent statutory authority.
Following Dickson Muricho Muriuki v Timothy Kagondu Muriuki, the Court held that the functus officio principle is grounded on public policy favouring finality of proceedings; if courts could revisit final orders merely because a party intends to appeal, there would never be finality. New points or circumstances arising after judgment must be raised in the Supreme Court.
Legal principles established
#- To succeed in a certification application under Article 163(4)(b), the applicant must demonstrate a matter of general public importance transcending the circumstances of the particular case, with a significant bearing on the public interest; mere apprehension of miscarriage of justice is not a proper basis for certification.
- Mere enumeration of issues as matters of general public importance does not suffice; there must be cogent demonstration that the issues fall within that ambit.
- Once the Court of Appeal has pronounced final judgment it is functus officio and, absent statutory authority, cannot stay its own judgment pending an intended appeal to the Supreme Court.
Court orders
#- 1.The Notice of Motion dated 26th March 2018 is dismissed
- 2.The applicant is to bear the 1st respondent's costs in this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No. 102 of 2010
- 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
The applicant failed to demonstrate a matter of general public importance or a substantial point of law bearing on the public interest
Stay of execution of the judgment and decree of the Court of Appeal
The Court becomes functus officio upon delivery of its judgment and has no jurisdiction to stay it absent statutory authority
Costs
The applicant is to bear the 1st respondent's costs in this application.
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 this matter the applicant has not demonstrated any point of law that has a significant bearing on public interest. We decline to grant leave and certification to appeal to the Supreme Court.
…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.
Accordingly, we decline to grant stay orders as we re-affirm that this Court becomes functus officio after pronouncement and delivery of its judgment.
In totality, the upshot of our consideration of the Notice of Motion dated 26 th March, 2018 is that the Motion has no merit and is hereby dismissed. The applicant is to bear the 1 st respondents costs in this application.
Issues in the judgment
#The judgment contains an apparent typographical error in the year of the Steyn citation as pleaded by the applicants: "[2031]" instead of an earlier year.
The case number is inconsistently printed ("SUP. 10 f 2018") and the header describes an application for stay of a judgment of the Court of Appeal delivered 2nd February 2010 arising from H.C.C.C. No. 672 of 2013, which is chronologically anomalous.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Southern Shield Holdings Ltd & 2 others v Delphis Bank Ltd & another (Civil Application Sup 10f (UR 720) of 2018) [2019] KECA 644 (KLR)", Case Analysis (2019). Civil Application No. SUP. 10 of 2018 (UR 720/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/644/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.