Westmont Holdings Sdn.bhd v Central Bank of Kenya
The bottom line
#The Court of Appeal refused Westmont permission to take its dispute with Central Bank of Kenya to the Supreme Court, confirming that cost disputes are not matters of general public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether questions concerning security for costs and access to justice qualify as matters of general public importance
They do not; the issue of award of costs or security for costs is not a substantial point of law and raises no issue bearing on the public interest
The court held that the law on security for costs is settled by the Court of Appeal Rules, particularly rule 107 requiring security on institution of a civil appeal and empowering direction of further security. Certification requires an issue transcending the particular case with a significant public-interest bearing; questions about costs orders in an inter partes dispute do not meet that threshold.
Whether the Steyn certification principles apply to this application
Yes; the court applied the seven principles laid down in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
The court restated the Steyn criteria in full, including that questions of law must have arisen and been determined in the courts below, that mere apprehension of miscarriage of justice is not a proper basis for certification, and that the applicant must concisely set out the specific elements of general public importance relied upon. The appellant's grounds failed against these criteria.
Whether an advocate could depose to the factual matters in the supporting affidavit
The court questioned the propriety of an advocate swearing to factual matters properly for the client, especially where the client's existence and locus were in doubt
The supporting affidavit was made by Anthony M. Muriithi, Advocate, speaking to the history of the transaction and the claim that the applicant was defrauded. The court found these to be factual matters on which the client, not counsel, should speak - a pointed observation given the respondent's allegation that Westmont had been wound up and did not exist.
Legal principles established
#- For certification under Article 163(4)(b), the intending appellant must show an issue whose determination transcends the circumstances of the particular case and has a significant bearing on the public interest
- Determinations of fact between parties are not by themselves a basis for granting certification for an appeal to the Supreme Court
- The Supreme Court's appellate jurisdiction is not invoked merely to rectify errors on matters of settled law
Court orders
#- 1.The Motion for certification of matters of general public importance is dismissed
- 2.Costs of the Motion awarded to the respondent
- On appeal from
- Court of Appeal
- Civil Appeal No. 37 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010 (certification that a matter of general public importance is involved)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Westmont Holdings Sdn.bhd v Central Bank of Kenya", Case Analysis (2021). Civil Application No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/393/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.