MNK v POM [2020] [2020] KECA 869 (KLR)
The bottom line
#The Court of Appeal refused to send a property dispute between former cohabiting partners to the Supreme Court, saying private factual disputes rarely raise issues of public importance.
What this practically means
#Executive summary
#Key legal issues
#Certification threshold under Article 163(4)(b)
The applicant failed to demonstrate a matter of general public importance; the issues were factual findings in a private cohabitation and property dispute.
The High Court found long cohabitation but declined to presume marriage because the applicant was married to another man; the Court of Appeal reversed that finding on the evidence. Both were findings of fact. The questions proposed for the Supreme Court, including the constitutionality of the presumption of marriage doctrine, were not raised or determined below and cannot found certification.
Presumption of marriage and cohabitation issues are not constitutional interpretation
Issues on presumption of marriage under common law and cohabitation under customary marriage law, however important, do not raise questions of constitutional interpretation or application warranting Supreme Court review.
Karanja, JA agreed with the lead ruling that there was nothing novel about the issues. They concern fact-sensitive application of established doctrine rather than novel constitutional controversy, and the application failed to meet the established threshold for escalation to the Supreme Court.
Whether the Court of Appeal awarded an unpleaded relief
The respondent had pleaded, in the Originating Summons, a declaration of joint acquisition and equal division of the property; the relief of equal entitlement was within the pleaded case.
The lead ruling set out the prayers in the Originating Summons showing the respondent sought a declaration of joint ownership and severance with equal division or sale and equal sharing. The claim that the Court of Appeal exceeded its jurisdiction by awarding an unpleaded relief was one of the grounds advanced but did not raise a matter of general public importance.
Verbose and argumentative affidavits
A 165-paragraph supporting affidavit that is verbose, repetitive and argumentative is improper; grounds should be stated concisely.
The court criticised the applicant's 165-paragraph affidavit as reading like written submissions and urged concision so that the main issues are taken clearly. This is an observation on practice rather than a ratio disposing of the motion.
Legal principles established
#- A matter of general public importance warranting an appeal to the Supreme Court must transcend the circumstances of the particular case, bear on the public interest, and if a point of law, must have arisen and been judicially determined in the courts below; determinations of fact are not by themselves a basis for certification.
Court orders
#- 1.The notice of motion dated 11th March 2019 is dismissed
- 2.Costs of the motion awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 6 of 2012
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010 - certification that a matter of general public importance is involved in an intended appeal to the Supreme Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MNK v POM [2020] [2020] KECA 869 (KLR)", Case Analysis (2020). Civil Application Sup. No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/869/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.