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Court of AppealDismissedCivil Application Sup. No. 9 of 2018 (UR 6/2018)· [2020] KECA 542 (KLR)

Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2020] KECA 542 (KLR)

Court of Appeal

10 July 2020

William Ouko

M. Warsame FSF. Sichale

2,024 words in judgment

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The bottom line

The Court of Appeal refused to let a long-running Embakasi land dispute go to the Supreme Court, ruling it was a private fight, not a matter of public importance.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Nairobi (Ouko, P, Warsame and Sichale, JJA) on a Notice of Motion dated 21st March 2018 in which eleven applicants sought certification that their intended appeal to the Supreme Court against the judgment of the Court of Appeal (Visram, Karanja and Koome, JJA) of 9th February 2018 in Civil Appeal No. 30 of 2013 involved a matter of general public importance, together with leave to appeal, a stay of execution and deeming of their Notice of Appeal. The underlying dispute concerned ownership of land parcels 209/11543 and 209/11546 in Embakasi; the applicants claimed ancestral occupation since 1926, while the 3rd and 4th respondents asserted title purchased from Kimakwe Enterprises Ltd in 1997. Both the High Court (Okwengu, J, 9th July 2012) and the Court of Appeal had found against the applicants, holding they failed to prove fraud and that the respondents' titles could not be impeached. Counsel for the applicants argued that eviction of over 20,000 occupants from ancestral land raised constitutional questions under Article 40, while the respondents maintained the matter was private, invoking Benjoh Amalgamated and Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone. Applying the Steyn criteria under Article 163(4)(b), the Court held that no issue of general public importance was shown: the applicants' interests were private, did not transcend the parties' circumstances, and there was no legal uncertainty, adverse possession not being available against government land. The motion was dismissed with costs. The decision below was not disturbed; this ruling concerns certification only.

Key legal issues

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not; the dispute is a private land ownership dispute whose interests do not transcend the parties.

Reasoning

The Court applied the Steyn v Gnecchi-Ruscone criteria. The dispute was over ownership of specific land parcels; that the applicants and their ancestors had lived on the land since 1926 did not alter its private character. No significant public-interest bearing was identified and no uncertainty in the law arising from contradictory precedents was demonstrated, so certification was refused.

p. 4

Whether adverse possession can run against government land

Holding

It cannot; it is settled law that the doctrine does not apply to government land.

Reasoning

Counsel for the applicants submitted that squatters have rights and that adverse possession can operate against the government in certain instances, but the Court held there was no uncertainty in the law on occupation of government land, affirming the settled position that the doctrine of adverse possession is unavailable in respect of government land.

p. 4

Legal principles established

For certification, the intending appellant must show an issue transcending the particular case with a significant bearing on the public interest
The doctrine of adverse possession cannot be invoked in respect of government land
Determination of facts in contests between parties is not by itself a basis for certification to the Supreme Court

Court orders

1.The motion dated 21st March 2018 is dismissed with costs

Authorities

Legislation

Constitution of Kenya, 2010Article 163(4)(a) and (b)
Supreme Court ActSection 16

Cases cited (2)

Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
[2013] eKLR
Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another
[2018] eKLR

On appeal from: Court of Appeal at Nairobi (decision sought to be appealed from to the Supreme Court); Civil Appeal No. 30 of 2013
Jurisdiction invoked: Article 163(4)(b) of the Constitution of Kenya, 2010 - certification by the Court of Appeal that a matter of general public importance is involved; Section 16 of the Supreme Court Act

Key timeline

Practical implications

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Cite this brief

Caselaw, "Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2020] KECA 542 (KLR)", Case Analysis (2020). Civil Application Sup. No. 9 of 2018 (UR 6/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/542/eng@2020-07-10

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