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Court of AppealDismissedCivil Application Sup E001 of 2021· [2022] KECA 377 (KLR)

Masoud (A member of the Tawheed Muslim Association) v Salim & 2 others (As Trustees of the Tawheed Girls Secondary School Trust)

Court of Appeal
21 January 2022
2,859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Malindi on an application by Munir Abubakar Masoud for certification of an intended appeal to the Supreme Court as raising matters of general public importance, and for leave to appeal, against the Court of Appeal's judgment in Malindi Civil Appeal No. 15 of 2018. The underlying dispute concerned ownership of LR No. 8604 and the trusteeship of Tawheed Girls Secondary School; the Environment and Land Court had upheld the Respondents as legitimate trustees, and the Court of Appeal had affirmed, finding the Applicant's fraud allegations neither specifically pleaded nor proved. The Court held the application incompetent because it was filed outside the fourteen-day period prescribed by Rule 40 of the Court of Appeal Rules without any extension of time. On the merits, applying the Supreme Court's criteria in Steyn v Ruscone, it found the dispute to be one of private proprietary interests between two purported allottees involving contested facts, with the law on alienation of public and trust land settled. It further held that constitutional and land-law grounds not raised before the trial court could not be taken to the Supreme Court, citing Erad Suppliers and Ngoge v Kaparo, and reaffirmed the settled rule that fraud must be specifically pleaded and distinctly proved, unaffected by Article 159. The application was dismissed with costs to the 1st to 3rd Respondents. The decision below was not disturbed; the Court simply declined certification and leave.

Key legal issues

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01

Timeliness of the certification application

Holding

The application was filed out of the fourteen-day period prescribed by Rule 40 and no extension of time was sought, rendering it incompetent.

Reasoning

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.

p. 3
02

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

Holding

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.

Reasoning

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.

p. 4
03

Whether constitutional issues not raised below can ground certification

Holding

No; a question of law for the Supreme Court must have arisen and been determined in the High Court and the Court of Appeal.

Reasoning

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.

p. 4
04

Pleading and proof of fraud and Article 159

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Applicant's Notice of Motion dated 24th February 2021 seeking certification and leave to appeal to the Supreme Court is dismissed
  2. 2.Costs of the application awarded to the 1st to 3rd Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a) and (b)
  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 40(1) & (6)
  • Constitution of Kenya, 2010Article 62(2)
  • Constitution of Kenya, 2010Article 159
  • Court of Appeal Rules, 2010Rules 40 and 42
  • Supreme Court Rules, 2012Rules 24 and 26
  • Civil Procedure RulesOrder 2 rule 4(1)
  • Trust Land Act

Cases cited (7)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi Ruscone
    [2013] eKLR

    Criteria for certifying a matter of general public importance under Article 163(4)(b)

  • Erad Suppliers & General Contractors Ltd. vs. National Cereals & Produce Board
    [2012] eKLR

    Constitutional questions integrally linked to a main cause must be resolved in the court of first instance; collateral causes fall outside Supreme Court jurisdiction

  • Peter Oduour Ngoge vs Hon. Francis Ole Kaparo
    (2012) eKLR

    Supreme Court must exercise appellate jurisdiction strictly within jurisdictional limits; only cardinal issues deserve its input

  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000] eKLR

    Fraud must be specifically pleaded with particulars on the face of the pleading and distinctly proved

  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR

    Supports the settled position on pleading and proof of fraud

  • Emil Ltd vs Registrar of Titles Mombasa & 2 Ors
    (2014) eKLR

    Fraud allegations must be strictly pleaded and proved to a higher standard; Article 159 does not displace rules of evidence

  • John Mbogua Getao vs Simon Parkoyiet Mokare & 4 others
    [2017] eKLR

    Fraud allegations are serious, may carry penal consequences, and must be specifically pleaded and proved

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.