Masoud (A member of the Tawheed Muslim Association) v Salim & 2 others (As Trustees of the Tawheed Girls Secondary School Trust)
The bottom line
#Kenya's Court of Appeal refused to send a land and trusteeship dispute to the Supreme Court, ruling it was filed late and raised no public importance.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the certification application
The application was filed out of the fourteen-day period prescribed by Rule 40 and no extension of time was sought, rendering it incompetent.
Rule 40 of the Court of Appeal Rules requires a motion for certification to be made within fourteen days of the decision. The decision in Malindi Civil Appeal No. 15 of 2018 was delivered on 29th January 2021, but the application was filed on 2nd March 2021. The Applicant neither filed within time nor sought extension, so the application was incompetent before the Court.
Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
It does not; the dispute concerns private proprietary interests between two purported allottees of land and contested facts, and the law on alienation of public and trust land is settled.
Applying the Steyn v Ruscone criteria, the Court found the dispute was essentially between two purported allottees of land, a matter of private interests involving contested facts. The law governing alienation of public, trust or government land is settled in the Constitution and land statutes. The Applicant's proposed question therefore did not transcend the parties' litigation interests or bear significantly on the public interest.
Whether constitutional issues not raised below can ground certification
No; a question of law for the Supreme Court must have arisen and been determined in the High Court and the Court of Appeal.
The Court of Appeal had declined to entertain grounds on contravention of land and education laws and Articles 40 and 62 because they were not raised before the trial court. For the same reason they could not be taken to the Supreme Court, consistent with Erad Suppliers and Ngoge v Kaparo on the chain of courts and jurisdictional limits.
Pleading and proof of fraud and Article 159
Fraud must be specifically pleaded with particulars and proved to a standard higher than balance of probabilities; Article 159 does not permit ignoring the rules of evidence.
Relying on Order 2 rule 4(1) of the Civil Procedure Rules and its own precedents (Vijay Morjaria, Kinyanjui Kamau, Emil Ltd, John Mbogua Getao), the Court reaffirmed that fraud must be distinctly alleged and distinctly proved, and that Article 159's injunction against technicalities does not license total disregard of evidentiary rules, given the serious and potentially penal consequences of fraud allegations.
Legal principles established
#- An application for certification of a matter of general public importance under Rule 40 of the Court of Appeal Rules must be made within fourteen days of the decision, and an application filed out of time without extension of time is incompetent.
- A question of law taken to the Supreme Court on certification must have arisen and been judicially determined in the courts below; issues not raised before the trial court cannot be raised for the first time on further appeal.
- Fraud must be specifically pleaded with particulars on the face of the pleading, distinctly alleged and distinctly proved, and Article 159 of the Constitution does not displace the rules of evidence on this requirement.
Court orders
#- 1.The Applicant's Notice of Motion dated 24th February 2021 seeking certification and leave to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the 1st to 3rd Respondents
- On appeal from
- Court of Appeal (judgment sought to be appealed to the Supreme Court)
- Malindi Civil Appeal No. 15 of 2018
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Rules 40 and 42 of the Court of Appeal Rules, 2010; Rules 24 and 26 of the Supreme Court Rules, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbarak Khalid Bakari v Director of Public Prosecutions, Inspector General & Kenya National Police Service[2020] KEHC 8970 (KLR)23 Jan 2020
- Mbarak Khalid Bakari v Director of Public Prosecutions, Inspector General & Kenya National Police Service[2020] KEHC 8970 (KLR)23 Jan 2020
- Veronica Wanyaga Mugo v Registrar of Deaths (Application to declare and presume Pius Mukono Murage dead)[2019] KEHC 9557 (KLR)15 Feb 2019applied
- Mwangolo Kiguzo v Inspector General of Police & Commandant, Anti-Terror Police Unit[2017] KEHC 9191 (KLR)24 Jul 2017followed
- Samuel Dong Luak & another v Republic[2017] KEHC 8525 (KLR)22 Feb 2017applied
- Abdirizak Mohamed Abdille v Attorney General & 7 Others (Habeas Corpus application in respect of Abdinasir Ahmed Mohamed)[2015] KEHC 3609 (KLR)2 Jul 2015applied
Cite this brief
#Cite this brief
Caselaw, "Masoud (A member of the Tawheed Muslim Association) v Salim & 2 others (As Trustees of the Tawheed Girls Secondary School Trust)", Case Analysis (2022). Civil Application Sup E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/377/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.