Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others
The bottom line
#The Court of Appeal refused to send this land dispute to the Supreme Court, confirming that private land fights rarely qualify as matters of general public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raised matters of general public importance justifying certification to the Supreme Court
The application failed; the issues were mere contests of fact between the parties that did not transcend the particular case.
Applying the Malcom Bell criteria, the Court held that the applicant bore the burden of demonstrating a lacuna or uncertainty in the law regarding Section 39 of the RLA and did not discharge it. The questions raised were determinations of fact in contests between parties, lacked significant bearing on public interest, and included issues never judicially determined below. Certification is a filtering process and apprehension of error by the Court of Appeal is not a basis for it.
Scope of Section 39 of the Registered Land Act (repealed)
Section 39 protects only persons dealing directly with the registered proprietor; the applicant dealt with Patrick, who was not the proprietor, so the section did not assist him.
The Court endorsed Nyangilo Ochieng, holding that a purchaser relying on Section 39 must demonstrate that he dealt with the proprietor shown in the register. The sale agreement was between the applicant and Patrick, not Rhoda, and the Court had found anomalies in how Rhoda was registered. No contradiction with Pashito Holdings was established, so no uncertainty in law arose from the impugned judgment.
Whether the limitation issue, raised for the first time on appeal, warranted certification
It did not, because the issue never arose in nor was judicially determined by the courts below.
Although limitation is a jurisdictional question, the Supreme Court's criteria in Hermanus Steyn and Malcom Bell require that questions of law constituting matters of general public importance must have arisen in the courts below and been the subject of judicial determination. It was common ground that limitation was neither pleaded nor raised at trial, so it could not qualify.
Legal principles established
#- Section 39 of the Registered Land Act protects only a purchaser who dealt directly with the proprietor of the land as reflected in the register; a purchaser dealing with a non-proprietor cannot invoke its protection.
- A question of law that never arose and was never judicially determined in the courts below cannot constitute a matter of general public importance for certification to the Supreme Court.
- An issue concerning the interpretation and application of the Constitution falls under Article 163(4)(a) as an appeal as of right and does not fall within the Court of Appeal's jurisdiction to grant leave to appeal to the Supreme Court.
- The burden lies on the applicant seeking certification to demonstrate a lacuna or uncertainty in the law arising from contradictory precedents.
Court orders
#- 1.Dismissal of the application for certification of the intended appeal as one of general public importance and for leave to appeal to the Supreme Court
- 2.Costs of the application to the respondents
- On appeal from
- Court of Appeal at Eldoret
- Civil Appeal 55 of 2018
- Jurisdiction invoked
- Article 163(4) of the Constitution; Section 19 of the Supreme Court Act; Rules 24 & 26 of the Supreme Court Rules; Rules 5(2) & 40 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others", Case Analysis (2020). Civil Application Sup. 131 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/87/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.