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Court of AppealDismissedCivil Application Sup. No. 23 of 2019

Maingi Mbinzu And 314 others v County Council Of Kitui & another [2021] KECA 1029 (KLR)

Court of Appeal
29 January 2021
William OukoW. OukoRNR.N. NambuyeMartha Karambu KoomeM.K. Koome
1,591 words in judgment
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The bottom line

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The Court of Appeal refused 315 Kitui villagers permission to take their land dispute to the Supreme Court, because their case was about routine court decisions, not a matter of wide public importance.

What this practically means

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Executive summary

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The Court of Appeal (Ouko, P., Nambuye and Koome, JJ.A.) delivered a ruling on an application by 315 villagers of Yatta Division, Kitui County, seeking leave under Article 163(4)(b) of the Constitution to appeal to the Supreme Court. The applicants claimed proprietary rights over about 9,500 acres of L.R. No. 13629 and alleged that the 2nd respondent, South Eastern University College, had succeeded to only 500 acres held by the defunct Ukamba Agricultural Institute. Jaden, J. had struck out their suit as trespassers without proprietary interest, and refused their application to review that ruling on the ground of error apparent on the face of the record. The Court of Appeal (Kariuki, Sichale and ole Kantai, JJ.A.) dismissed the appeal from that refusal, holding among other things that an appeal and a review could not be pursued simultaneously. The applicants then sought certification that a matter of general public importance was involved, arguing that persons in their situation might be evicted on interlocutory applications. Applying the Supreme Court's threshold in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held that the intended appeal concerned only the ordinary exercise of judicial discretion in a review application, not land ownership, and that the applicants had failed to discharge the burden of showing specific elements of real public interest and concern transcending their litigation interests. The application was accordingly dismissed with costs to the 2nd respondent.

Key legal issues

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01

Whether an intended appeal against refusal of review of an interlocutory striking-out order raises a matter of general public importance under Article 163(4)(b)

Holding

It does not. The intended appeal would concern the exercise of judicial discretion in an ordinary review application, not the ownership of land, and the applicants failed to demonstrate specific elements of real public interest and concern transcending their litigation interests.

Reasoning

Article 163(4)(b) confines leave to matters of general public importance. The Court applied the Steyn v Gnecchi-Ruscone threshold: the matter must have substantial, broad-based impacts transcending the parties and bearing on public interest, and any point of law must have been raised and considered below. The intended appeal targets a routine exercise of discretion on a review application; the underlying land question would not be before the Supreme Court. The applicants bore the burden and did not discharge it.

p. 3

Legal principles established

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  • Leave to appeal to the Supreme Court under Article 163(4)(b) requires certification that the matter carries specific elements of real public interest and concern, transcending the litigation-interests of the parties, and any such point of law must have been raised and considered by the courts below.
  • An intended appeal challenging the ordinary exercise of judicial discretion in refusing a review does not satisfy the general-public-importance threshold.

Court orders

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  1. 1.The application for leave (certification) to appeal to the Supreme Court is dismissed
  2. 2.Costs of the application awarded to the 2nd respondent
On appeal from
Court of Appeal
CA No. 6 of 2017
Jurisdiction invoked
Article 163(4)(b) of the Constitution - application for certification that a matter of general public importance is involved in an intended appeal to the Supreme Court

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, "Maingi Mbinzu And 314 others v County Council Of Kitui & another [2021] KECA 1029 (KLR)", Case Analysis (2021). Civil Application Sup. No. 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1029/eng@2021-01-29

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