Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedMombasa Civil Appeal No. 23 of 2018 (application dated 23rd May 2023)

Sombo & Others & 4 others (Suing on behalf of 15,000 individuals of the Amwezi and Mirima Clans of the Duruma Community) v Nyari Investments (1996) Ltd & 5 others (Civil Appeal (Application) E050 of 2023) [2023] KECA 1435 (KLR)

Court of Appeal of Kenya
24 November 2023
3,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal threw out a clan's attempt to take a major land dispute to the Supreme Court, mainly because they filed late and showed no conflicting case law.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (P. Nyamweya, J. Lesiit and G. V. Odunga, JJ.A.) on a notice of motion dated 23rd May 2023 by Joseph Sombo and four others, suing on behalf of some 15,000 members of the Amwezi and Mirima Clans of the Duruma Community. They sought a stay of execution of the Court of Appeal's judgment of 14th April 2023 in Mombasa Civil Appeal No. 23 of 2018, certification under Article 163(4)(b) of the Constitution that their intended appeal to the Supreme Court involved a matter of general public importance, and leave to appeal. The intended appeal concerned the setting apart of trust land under section 118 of the retired Constitution and section 7 of the repealed Trust Land Act, and its allocation to a private company. The court framed three issues: competence of the application, whether the matter qualified for certification, and whether stay should issue. It held the application incompetent for being filed beyond the fourteen-day period in Rule 42 without an extension of time under Rule 4. On certification, applying the criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone, it found the applicants had not shown uncertainty in the law arising from contradictory precedents, and that the public-interest issue they now raised was never canvassed or determined in the courts below, compounded by the finding that the representative suit did not comply with Order 1 rule 13 of the Civil Procedure Rules. Certification and leave were declined. On stay, the court held it was functus officio after final judgment and declined to invoke its inherent jurisdiction. The application was dismissed with each party bearing its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is competently filed, having regard to the timelines in Rule 42 of the Court of Appeal Rules
  2. 2.Whether the intended appeal to the Supreme Court raises a matter of general public importance warranting certification and leave under Article 163(4)(b)
  3. 3.Whether stay of execution of the Court of Appeal judgment should be granted

Key legal issues

#
01

Competence of the certification application for non-compliance with Rule 42 timelines

Holding

The application, filed over a month after the judgment of 14th April 2023, was out of time and incompetent, no extension of time having been sought under Rule 4.

Reasoning

Rule 42 permits an application for certification either informally at the time of the decision or by motion within fourteen days. The decision was delivered on 14th April 2023 and the application was dated 23rd May 2023, well beyond the prescribed period. The applicants did not seek extension of time under Rule 4, so the application failed at the threshold.

p. 4
02

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

Holding

Certification was declined because the applicants failed to demonstrate uncertainty in the law from contradictory precedents, and the public-interest issue they raised was never canvassed or determined in the courts below.

Reasoning

Applying the Steyn criteria, the applicants had to show a substantial point of law transcending the parties' interests, arising from contradictory precedents and determined by the lower courts. They cited no case showing conflicting interpretations. Further, the public-interest issue was not raised before the ELC or this Court, and the representative-suit defect under Order 1 rule 13 undermined their claim to speak for the 15,000 clan members.

p. 6
03

Whether stay of execution could be granted after final judgment

Holding

Stay was refused; the court was functus officio after judgment and its post-judgment jurisdiction is limited to certification under Article 163(4)(b).

Reasoning

Following Dickson Muricho Muriuki v Timothy Kagondu Muruiki, Rule 5(2)(b) does not empower the court to entertain applications on the merits after judgment; post-judgment jurisdiction is confined to certification. Given the conclusions on demerits, the court declined to invoke its inherent power, noting it would serve no purpose and would not bring closure to proceedings spanning four decades.

p. 7

Legal principles established

#
  • An application for certification under Rule 42 of the Court of Appeal Rules must be made either informally at the time of the decision or by motion within fourteen days; an application filed outside that period without extension of time is incompetent.
  • An intending appellant seeking certification must demonstrate uncertainty in the law emanating from contradictory precedents, and may only raise issues that were before the courts below and were the subject of judicial determination.
  • After delivering final judgment, the Court of Appeal's jurisdiction is restricted to certification of matters for appeal to the Supreme Court under Article 163(4)(b), and the court may decline to exercise inherent power to grant stay.

Court orders

#
  1. 1.The application dated 23rd May 2023 is dismissed
  2. 2.Each party to bear its own costs of this application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court (ELC)
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010; rule 40 of the Court of Appeal Rules; rule 33(1) of the Supreme Court Rules, 2010

Relief refused

#

Certification under Article 163(4)(b) and leave to appeal to the Supreme Court

The application was filed out of time and the applicants failed to demonstrate that the intended appeal raises a matter of general public importance or an uncertain area of law from contradictory precedents

p. 7

Stay of execution of the Court of Appeal judgment of 14th April 2023

The court held it was functus officio after delivering final judgment and declined to invoke its inherent jurisdiction

p. 7

Costs

Each party to bear its own costs of this application.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application is therefore incompetent, having been filed out of time, and the applicants having failed to apply for extension of time under Rule 4 of this Court’s Rules.
p. 4Timeliness of certification applications under Rule 42
The applicants did not cite a single case in support of this criteria. It has therefore failed to demonstrate that there are confiicting decisions emanating from contradictory interpretations of relevant law that requires the Supreme Court to bring clarity.
p. 6Failure to demonstrate contradictory precedents for certification
we are not persuaded that the intended appeal raises an issue of general public importance, which transcends the circumstances of the particular case and has a significant bearing on the public interest, nor that it raises any substantial point of law which will have a significant bearing on the public interest. In the result, the requested certification and/or leave is declined.
p. 7Certification and leave declined
In view of the conclusions we have made on the demerits of this application, we are functus officio and resist exercising the inherent power of this Court to grant stay.
p. 7Functus officio and refusal of stay
The application dated 23rd May 2023 is dismissed. 2. Each party to bear its own costs of this application.
p. 7Final orders and costs

Issues in the judgment

#
minor

The coram lists three judges, but the underlying judgment being appealed was delivered by a majority of Nyamweya and Lesiit JJ.A. with Gatembu J.A. dissenting; Gatembu J.A. does not sit on this application, so the panel composition is internally consistent but the dissent referred to is from the earlier decision.

minor

The judgment inconsistently dates Rule 42, first referring to the 'Court of Appeal Rules, 2010' in the application description and then quoting 'Rule 42 of the Court of Appeal Rules, 2022'.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sombo & Others & 4 others (Suing on behalf of 15,000 individuals of the Amwezi and Mirima Clans of the Duruma Community) v Nyari Investments (1996) Ltd & 5 others (Civil Appeal (Application) E050 of 2023) [2023] KECA 1435 (KLR)", Case Analysis (2023). Mombasa Civil Appeal No. 23 of 2018 (application dated 23rd May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1435/eng@2023-11-24

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