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Court of AppealDismissedCivil Application No. SUP. 160 of 2019· [2020] KECA 383 (KLR)

Tawai Limited v Eldoret Express Limited & another [2020] KECA 383 (KLR)

Court of Appeal
7 August 2020
William OukoW. OukoWKW. KaranjaJMJ. Mohammed
1,480 words in judgment
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The bottom line

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The Court of Appeal refused to send Tawai Limited's land dispute to the Supreme Court, ruling that the issues were private grievances, not matters of public importance.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, P, Karanja and J. Mohammed, JJ.A) on two identical consolidated applications, Civil Application Nos. SUP. 160 and 167 of 2019, in which Tawai Limited sought certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution, together with a stay of the Court of Appeal's judgment. The judgment sought to be appealed was delivered at Eldoret on 28 November 2019 in Civil Appeal No. 118 of 2017, overturning the Environment and Land Court's decision which had declared Eldoret Express Limited's registration and transfer of LR No. 5707/6 illegal, cancelled its title, ordered eviction, a permanent injunction and mesne profits of Kshs.11,970,000. The Court of Appeal had found the property was validly sold under a statutory power of sale, that fraud was unproved, that the cancellation claim was statute-barred, and that the respondent was a bona fide purchaser for value. The applicant proposed five questions of general public importance, including whether a deed plan in contravention of the law can confer title and when limitation begins to run where fraud is alleged. Applying the test in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held the questions were matters of settled law that did not transcend the parties' litigation interests and were mere dissatisfaction with findings of fact. It further held, relying on Moi High School Kabarak v Malcolm Bell, that it cannot stay its own decision under Rule 5(2)(b); the proper forum is the Supreme Court after certification. The application was dismissed with costs.

Key legal issues

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01

Whether the proposed questions of law are matters of general public importance

Holding

They are not; the questions are matters of settled law confined to the parties' dispute and concern fact determination

Reasoning

Applying the Steyn v Gnecchi-Ruscone test, the Court found the questions did not transcend the litigation interests of the parties, were unlikely to affect the public interest, and the applicant had not demonstrated uncertainty in the law from contradictory precedents. The intended appeal was, in substance, dissatisfaction with findings of fact.

p. 2
02

Whether the Court of Appeal can stay its own decision pending a Supreme Court appeal

Holding

It cannot; only the Supreme Court can stay the Court of Appeal's decision, and only after certification

Reasoning

Rule 5(2)(b) permits stay of orders of superior courts below, not of the Court of Appeal's own decisions, and the Court of Appeal Rules contain no equivalent to Order 42 rule 6 of the Civil Procedure Rules. The Supreme Court's decision in Moi High School Kabarak confirms that ancillary interlocutory orders of that character fall to the Supreme Court.

p. 2

Legal principles established

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  • For certification under Article 163(4)(b), an applicant must show an issue transcending the particular case with significant bearing on the public interest; determination of facts between parties is not by itself a basis for certification
  • The Court of Appeal cannot stay its own decision under Rule 5(2)(b); a stay pending a Supreme Court appeal may only be sought in the Supreme Court after certification has been granted

Court orders

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  1. 1.The applications for certification and leave to appeal to the Supreme Court are dismissed
  2. 2.The prayer for stay of execution of the Court of Appeal's decision is refused
  3. 3.The applicants to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Supreme Court Actsection 15
  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 42 rule 6
  • Indian Transfer of Property Act (repealed)section 69(1)
  • Registration of Titles Act (repealed)
  • Limitation of Actions Act

Cases cited (2)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone
    Supreme Court Application No. 4 of 2012
  • Board of Governors, Moi High School, Kabarak & Another vs. Malcolm Bell
    S.C Application Nos. 12 and 13 of 2012
On appeal from
Court of Appeal at Eldoret
Civil Appeal No. 118 of 2017
Jurisdiction invoked
Article 163(4)(b) of the Constitution; section 15 of the Supreme Court Act; sections 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules

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, "Tawai Limited v Eldoret Express Limited & another [2020] KECA 383 (KLR)", Case Analysis (2020). Civil Application No. SUP. 160 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/383/eng@2020-08-07

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