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Court of AppealDismissedCivil Application No. SUP 17 of 2019 (UR 11/2019)· [2020] KECA 644 (KLR)

Thrift Estates Limited & another v Etrade Limited & another [2020] KECA 644 (KLR)

Court of Appeal
22 May 2020
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let a land dispute reach the Supreme Court, ruling that the issues raised were private, not matters of general 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 (Karanja, Sichale & J. Mohammed, JJ.A) on an application by Thrift Estates Limited and Dakagi Holdings Limited for certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution against the Court of Appeal judgment of 5th July 2019 (Visram, Gatembu & Otieno-Odek, JJ.A) in Civil Appeal No. 109 of 2017 consolidated with Civil Appeal No. 156 of 2015. The underlying dispute arose from a Ksh. 30 million loan by Equatorial Commercial Bank secured by a charge over land parcel L.R No. 14902/70, its attempted auction sales, and two High Court rulings granting injunctions which the Court of Appeal later set aside, condemning the applicants to pay costs. The applicants argued the judgment raised matters of general public importance concerning the interplay of Sections 97 and 99 of the Land Act, judicial discretion, and the protection of borrowers. The respondents, relying on Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone, opposed, contending there was no uncertainty in the law. The Court identified a single issue: whether the application involved a matter of general public importance. It held that the Section 97 question was not before the Court on appeal and was inchoate, not having gone through the hierarchy of courts; that no conflict in the interpretation of Sections 97 or 99 had been demonstrated; that the law on judicial discretion was settled; and that no issue transcended the parties' interests. The application was dismissed with costs to the respondents.

Key legal issues

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01

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

Holding

The application fails: the Section 97 issue did not arise before the Court of Appeal and is inchoate; no conflict in interpretation of Sections 97 or 99 was shown; the law on judicial discretion is settled; no issue transcends the parties.

Reasoning

The Court held that the question of Section 97 of the Land Act was not before it when the appeal was heard because the suit property had been sold over a year before the second injunction, and the main suit remained undetermined. The applicant showed no contradictory precedents or uncertainty in the law. Applying the Hermanus Steyn criteria, the Court found no issue transcending the parties' interests and dismissed the certification application with costs.

p. 3

Legal principles established

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  • An issue that was not before the Court of Appeal on appeal, or that has not gone through the hierarchy of the courts, cannot be certified as a matter of general public importance for the Supreme Court.
  • Certification under Article 163(4)(b) requires demonstration that the issue transcends the circumstances of the particular case and that any point of law is substantial and unresolved, per Hermanus Steyn.

Court orders

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  1. 1.The application for certification and leave to appeal to the Supreme Court is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 163(4)(b)
  • Land ActSection 97(3)
  • Land ActSection 97
  • Land ActSection 99(4)

Cases cited (2)

  • Hermanus Phillipus Steyn vs Giovanni Gnechi-Ruscone
    Supreme Court Application No. 4 of 2012
  • Peter Ngoge vs Francis Ole Kaparo & 5 Others
    [2012] eKLR
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 109 of 2017 (consolidated with Civil Appeal No. 156 of 2015)
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya 2010 (application for leave and certification to appeal to the Supreme Court on a matter of general public importance)

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, "Thrift Estates Limited & another v Etrade Limited & another [2020] KECA 644 (KLR)", Case Analysis (2020). Civil Application No. SUP 17 of 2019 (UR 11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/644/eng@2020-05-22

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