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Court of AppealDismissedCivil Application 68 of 2019· [2022] KECA 494 (KLR)

Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others

Court of Appeal
1 April 2022
SKSG KairuPNP NyamweyaJLJW Lessit
3,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to send the Shah family land dispute to the Supreme Court, ruling the issues were private, evidence-based, and filed too late.

What this practically means

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Executive summary

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The applicants sought certification that their intended appeal to the Supreme Court raised matters of general public importance under Article 163(4)(b) of the Constitution, leave to appeal, and a stay of execution of the Court of Appeal's judgment of 4th April 2019 in Civil Appeal 117 of 2018, which had reversed the High Court by declaring that shares in the 4th to 7th applicants and the suit land were held in trust for the 1st respondent, nullifying the sale and transfer of the suit land, and lifting the corporate veil of two applicant companies. The respondents objected that the dispute concerned contested facts in private contracts, that settled law was invoked, that the application was out of time, and that the Court was functus officio regarding stay. The Court applied the Supreme Court's criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone and held that the issues raised were either settled law or turned on the evidence, and thus could not transcend the parties' dispute; the applicants were in truth seeking a review of the Court of Appeal's findings through the certification route, which is unavailable. The application was also incompetent, having been filed far outside the fourteen-day period in Rule 40(2) of the Court of Appeal Rules with no extension of time. On stay, the Court followed Dickson Muricho Muriuki, holding that after final judgment the Court of Appeal is functus officio and cannot, absent statutory authority, reopen its own case or stay execution. The Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

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

Holding

No. The issues raised are either settled law (undue influence, constructive/resulting trusts, piercing the corporate veil) or turn on the evidence; they do not transcend the parties' dispute.

Reasoning

Applying the Steyn v Ruscone criteria, the Court held that the applicants' complaints were essentially grievances about the Court of Appeal's factual findings and alleged bias, not substantial questions of law bearing on the public interest. Questions of fact and contests between parties are not a basis for certification, and the fair-hearing claim was never pleaded below.

p. 6
02

Whether the Court of Appeal can stay execution of its own judgment pending an intended appeal to the Supreme Court

Holding

No. Once final judgment is pronounced the Court is functus officio; absent statutory authority it cannot reopen the case, and inherent jurisdiction cannot be invoked for an incompetent application that fails certification.

Reasoning

Following Dickson Muricho Muriuki, the Court held that Rule 5(2)(b) confers no power to entertain applications on the merits after judgment; post-judgment jurisdiction is restricted to certification under Article 163(4)(b). Since the application was incompetent and failed certification, inherent jurisdiction could not be invoked to grant a stay.

p. 6
03

Whether the application was filed within the fourteen-day period prescribed by Rule 40(2) of the Court of Appeal Rules

Holding

No. The judgment was delivered on 4th April 2019 and the application was lodged on 2nd August 2019, well outside fourteen days, with no evidence of an extension of time.

Reasoning

Rule 40(2) requires a certification application to be made within fourteen days of the decision. The applicants neither filed within time nor obtained an extension, rendering the application incompetent and dispositive of the matter without needing to reach the merits fully.

p. 4

Legal principles established

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  • An application for certification under Rule 40(2) of the Court of Appeal Rules must be made within fourteen days of the decision; an application filed out of time without extension is incompetent.
  • After pronouncing final judgment, the Court of Appeal is functus officio and cannot stay execution of or reopen its own judgment absent statutory authority; post-judgment jurisdiction is confined to certification under Article 163(4)(b).
  • Grievances that the Court of Appeal's findings were unsupported by the evidence cannot be pursued through certification and leave to appeal to the Supreme Court.

Court orders

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  1. 1.The Applicants' Notice of Motion dated 10th July 2019 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 163(4)(a)
  • Constitution of KenyaArticle 163(4)(b)
  • Constitution of KenyaArticle 40
  • Court of Appeal Rules, 2010Rule 40(2)
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 1(2)
  • Companies ActSection 165

Cases cited (8)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi Ruscone
    (2013) eKLR

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

  • Dickson Muricho Muriuki vs Timothy Kagondu Muruiki & 6 others
    [2013] eKLR

    Court of Appeal is functus officio after final judgment; post-judgment jurisdiction confined to certification

  • Nabro Properties Limited vs Sky Structures Limited (Z.R. Shah) Southfork Investments Limited
    [1986] eKLR

    Law on vitiation of contracts by undue influence

  • Bank of Credit and Commerce International SA vs Aboody
    [1992] 4 All ER 955

    Undue influence vitiating contracts; rests on facts of each case

  • Gichuki vs. Gichuki
    [1982] KLR 285

    Circumstances when a resulting or constructive trust arises

  • Mbothu & 8 Others vs Waitimu & 11 Others
    [1986] KLR 17

    Resulting/constructive trusts; existence of a trust proved through evidence

  • Twalib Hatayan Twalib Hatayan & Anor vs Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR

    Trusts arising from shareholding arrangements; proof of trust through evidence

  • Riccatti Business College of East Africa Limited vs Kyanzavi Farmers Company Limited
    [2016] eKLR

    Circumstances when a court may pierce the corporate veil

On appeal from
Court of Appeal at Mombasa
Mombasa Civil Appeal No. 117 of 2018
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others", Case Analysis (2022). Civil Application 68 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/494/eng@2022-04-01

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