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Court of AppealDismissedNotice of motion dated 27th February 2018 (application for certification under Article 163(4)(b))· [2023] KECA 141 (KLR)

Christopher Kioi & 1 other v Winnie Mukolwe, Juliah Kirira & Hope Mutua (sued As The Administrators of The Estate of David Nyambu Kituri Deceased) & 1 other

Court of Appeal of Kenya
17 February 2023
4,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let an adverse possession land dispute go to the Supreme Court, confirming such claims are settled law and stay at the Court of Appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Mohammed and Ole Kantai, JJA) on a notice of motion dated 27th February 2018 in which Christopher Kioi and Nancy Wambui Waweru, suing on behalf of the estate of Mwangi Kioi, sought certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution, together with an injunction restraining dealings with LR No 10090/24 in Juja pending the intended appeal. Their adverse possession claim against the estate of David Nyambu Kituri had been dismissed by the High Court on 27th January 2017 for failure to prove dispossession or uninterrupted possession for over 12 years, and the Court of Appeal upheld that dismissal in a judgment of 16th February 2018. Applying the seven governing principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held that the applicants' proposed issues all revolved around adverse possession, a subject the Supreme Court in Malcolm Bell v Daniel Toroitich Arap Moi declared sufficiently settled and outside the Supreme Court's appellate jurisdiction. The further question whether adverse possession amounts to a property right under Article 40 was never canvassed or determined in the courts below and so failed the certification threshold; factual contests over occupation since 1969 could not ground certification. The Court declined to certify the intended appeal and dismissed the application with costs. The decision binds lower courts to the effect that adverse possession claims and fact-bound ownership contests do not qualify as matters of general public importance for Supreme Court admission.

Key legal issues

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01

Whether adverse possession claims raise matters of general public importance for Supreme Court certification

Holding

They do not; the doctrine is sufficiently settled and such claims fall within the Court of Appeal's jurisdiction.

Reasoning

The Court applied the Supreme Court's Malcolm Bell decision, which held that adverse possession is sufficiently settled in law and is no longer a proper subject of general public importance for the Supreme Court's appellate jurisdiction. The applicants' five proposed issues all revolved around adverse possession, which had been determined by both superior courts on the facts.

p. 8
02

Whether the Article 40 property-rights question could ground certification

Holding

No, because it was not canvassed or determined in the courts below.

Reasoning

Under the Hermanus Phillipus Steyn criteria, a substantial point of law must have arisen in the courts below and been the subject of judicial determination. On perusal of the originating summons, the High Court judgment and the Court of Appeal judgment, the issue whether adverse possession amounts to a right to property under Article 40 was never canvassed or determined in either court, so it fails the threshold.

p. 8
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Whether the applicants' disputes over years of possession could support certification

Holding

No; contests of fact are not a basis for certification.

Reasoning

The applicants' contention that they had occupied the suit property since 1969 raised a contest on facts, which under the Steyn principles cannot be a basis for granting certification. The High Court had found the applicants failed to prove dispossession or uninterrupted possession for over 12 years, and the Court of Appeal upheld that finding.

p. 5

Legal principles established

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  • For certification under Article 163(4)(b), the intending appellant must show a substantial point of law that arose and was determined in the courts below and whose determination transcends the particular case and bears significantly on the public interest; determinations of fact are not a basis for certification.
  • Questions pertaining to claims under adverse possession are settled in law and fall within the Court of Appeal's jurisdiction; they do not qualify as matters of general public importance for the Supreme Court.

Court orders

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  1. 1.Declined to certify the intended appeal as one raising a matter of general public importance fit for appeal in the Supreme Court
  2. 2.Dismissed the application with costs
On appeal from
High Court of Kenya
Jurisdiction invoked
Article 163(4)(b) of the Constitution (certification of a matter of general public importance), section 3A & 3B of the Appellate Jurisdiction Act, Rule 24(1) of the Supreme Court Rules, and Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules

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, "Christopher Kioi & 1 other v Winnie Mukolwe, Juliah Kirira & Hope Mutua (sued As The Administrators of The Estate of David Nyambu Kituri Deceased) & 1 other", Case Analysis (2023). Notice of motion dated 27th February 2018 (application for certification under Article 163(4)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/141/eng@2023-02-17

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