Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the ruling· [2021] KECA 294 (KLR)

Airtel Networks Kenya Limited v Africa Management Communications Limited (Civil Application 10 of 2020) [2021] KECA 294 (KLR)

Court of Appeal of Kenya
26 November 2021
OKO. KiageAMA.K. Murgor
3,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to let a commercial dispute reach the Supreme Court, confirming that unhappy litigants need more than dissatisfaction to appeal there.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal, Nairobi, delivered on 26th November 2021 by Kiage JA with a concurring ruling by Murgor JA, determines a Notice of Motion dated 5th June 2020 in which the appellant sought certification, under Article 163(4) of the Constitution, that its intended appeal to the Supreme Court raises matters of general public importance. The intended appeal challenged this Court's judgment of 8th May 2020 which reinstated a summary judgment entered in the High Court (Ochieng, J.) in favour of the respondent. The applicant advanced grounds including alleged breach of Article 50 rights, the standards of appellate review of discretionary decisions, jurisdictional objections raised for the first time, the treatment of liquidated claims, and principles excusing lapses by parties. Applying the authoritative test in Malcolm Bell and Hermanus Phillipus Steyn, Kiage JA held that the applicant sought the Supreme Court's intervention on matters long settled and dependent on case-by-case judicial discretion; several issues were raised for the first time at the Supreme Court in disregard of the requirement that questions must have arisen and been determined in the courts below; and the issues lacked a public-interest bearing. The court held that mere dissatisfaction with a Court of Appeal decision is no basis for approaching the Supreme Court. The application was dismissed with costs to the respondent. Murgor JA fully concurred, and the ruling was delivered under Rule 32(3), Koome JA having ceased to be a judge upon assuming the Office of Chief Justice. No decision below was disturbed by this ruling, which binds no issue of general public importance upon lower courts beyond restating the certification test.

Key legal issues

#
01

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

Holding

The application fails the Malcolm Bell test; the issues raised are settled, case-specific and lack a public-interest bearing.

Reasoning

The court applied the test set out in Malcolm Bell and Hermanus Phillipus Steyn, holding that the applicant sought the Supreme Court's intervention on matters long settled and dependent on case-by-case judicial discretion, such as appellate review standards and excusing of lapses. Some issues were being raised for the first time in the Supreme Court in disregard of the established test. The issues did not transcend the case and dissatisfaction alone cannot ground certification.

p. 7

Legal principles established

#
  • Certification under Article 163(4)(b) requires an issue whose determination transcends the circumstances of the particular case and has a significant bearing on the public interest; dissatisfaction with a Court of Appeal decision is not a basis for approaching the Supreme Court
  • Questions of law certified for Supreme Court appeal must have arisen and been the subject of judicial determination in the courts below

Court orders

#
  1. 1.The application for certification is dismissed with costs to the respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 163(4)
  • Constitution of Kenya, 2010Article 50
  • Supreme Court Act, 2011section 15; sections 20-23
  • Supreme Court Rules, 2020Rule 33; Rule 32(3)
  • Appellate Jurisdiction Actsections 3A and 3B
  • Civil Procedure Rules, 2010Order 10; Order 37; Order 10 rule 5
  • Court of Appeal RulesRule 92(1)
  • Court of Appeal Practice Directions 2015Practice Note No. 2(c)(iv)

Cases cited (11)

  • Mohamed & Anor -vs- Shoka
    [1990] KLR 463
  • Hermanus Phillipus Steyn -vs- Giovanni Gnecchi-ruscone
    [2013] eKLR
  • Malcolm Bell -vs- Daniel Toroitich Arap Moi & Another
    [2013] eKLR
  • Synergy Industrial Credit Limited -vs- Cape Holdings Ltd
    [2019] eKLR
  • Kenya Commercial Bank Limited -vs- Muiri Coffee Estate Limited & Another
    [2016] eKLR
  • Belinda Murai & Others -vs- Amos Wainaina
    [1978] LLR 2782
  • Philip Chemowolo & Another -vs- Augustine Kubede
    [1982-88] KAR 103
  • Daniel Kimani Njihia -vs- Francis Mwangi Kimani & Another
    [2015] eKLR
  • Shabbir Ali Jusab -vs- Anaar Osman Gaturi & The AG
    Civil Application No. Sup. I of 2012 (UR 1/2012)
  • Koinange Investment & Development Ltd -vs- Robert Nelson Ngethe
    [2013] eKLR
  • Joseph Amisi -vs- The Independent Elections & Boundaries Commission & 2 Others
    [2014] eKLR
On appeal from
High Court of Kenya (decision under challenge was this Court's own judgment of 8th May 2020, which reinstated the High Court summary judgment by Ochieng, J.)
Not stated in the ruling
Jurisdiction invoked
Article 163(4) of the Constitution, section 15 of the Supreme Court Act, 2011 and Rule 33 of the Supreme Court Rules, 2020 (application for certification of a matter of general public importance)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Airtel Networks Kenya Limited v Africa Management Communications Limited (Civil Application 10 of 2020) [2021] KECA 294 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/294/eng@2021-11-26

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