Thika Coffee Mills v Rwama Farmers Co-operative Society Limited [2020] KECA 710 (KLR)

Applying the Supreme Court's principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court tested whether the issues intended for the Supreme Court had arisen and been determined in the Court of Appeal. Several issues (jurisdiction of the Co-operatives Tribunal, legality of pre-1997 co-operative contracts, principles for retrial) were never raised below. The remaining issues on pleadings and Sections 35 and 37 of the Arbitration Act collapsed into a question of jurisdiction already settled by the Supreme Court in Nyutu Agrovet. Certification was therefore refused.

Because the intended appeal is one under Article 163(4)(b), the applicant is confined to issues that were the subject of judicial determination in the Court of Appeal. The Court compared the grounds in the motion against its own 12th October 2018 judgment and found that issues (b) to (e) and (k) were never raised or addressed in that judgment, and were therefore foreclosed before the Supreme Court.

The Court noted that the jurisdictional question in the intended appeal was exactly the same as that resolved in Nyutu Agrovet, where the Supreme Court held that although there is no express bar to appeals under Section 35, the Court of Appeal has only a residual, circumscribed jurisdiction exercisable sparingly in the clearest of cases. Since the applicant's appeal was heard on merit and found to lack substance, and appeals under Section 35 concern process rather than merit, the issue was not novel and did not merit Supreme Court determination.