Faud Mahamoud Mohamed v Diamond Trust Bank Kenya Limited & 1 other
The bottom line
#Kenya's Court of Appeal refused to send a bank-customer dispute to the Supreme Court because the application was filed late and raised no public-interest issue.
What this practically means
#Executive summary
#Key legal issues
#Competency of the certification application for being filed out of time
The application, filed about two months after the judgment of 14th April 2023, violated the fourteen-day limit in Rule 42 of the Court of Appeal Rules and was incompetent, no extension of time having been sought.
Rule 42 of the Court of Appeal Rules, 2022 requires an application for a certificate to be made by motion within fourteen days after the decision against which appeal is desired. The decision was delivered on 14th April 2023 and the application was dated 19th June 2023 and lodged on 22nd June 2023. No reasons for the delay were advanced and no application for extension of time was made, rendering the application fatally defective on competency alone.
Whether the bankassurance issue, raised for the first time on certification, qualifies for appeal to the Supreme Court
It does not. The Supreme Court only entertains issues that have traversed the judicial hierarchy and been the subject of determination by the courts below; the bankassurance question was new and jurisdictionally barred.
Relying on Pati Limited v Funzi Island Development Limited and Peter Oduour Ngoge v Hon. Francis Ole Kaparo, the Court held that certification is jurisdictional and that the Supreme Court must not assume jurisdiction over issues not determined below. The gravamen of the case in both courts was the insurance taken to secure the charged property, not the regulatory character of bankassurance, which was raised for the first time in the certification application.
Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
No. The issues are localized to the contractual relationship between the parties, concern fact-based contests and a commercial contract interpretation, and do not transcend the particular case.
Applying the Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone criteria, the Court found the grounds lengthy, argumentative and wordy, failing to identify with precision any substantial point of law with significant bearing on the public interest. Determinations of fact and interpretation of a particular commercial contract between private parties fall short of the transcendent public importance required for certification.
Legal principles established
#- An application for certification of an appeal to the Supreme Court under Rule 42 of the Court of Appeal Rules must be filed within fourteen days of the decision sought to be appealed against; an application filed out of time without extension of time is incompetent.
- Only issues that have arisen through the judicial hierarchy and been determined by the lower courts may be certified for appeal to the Supreme Court; a new issue raised for the first time in a certification application does not qualify.
- An applicant for certification must precisely and concisely identify the specific elements of general public importance; disputes localized to the contractual relationship between the parties do not meet the Article 163(4)(b) threshold.
Court orders
#- 1.The application for certification as a matter of general public importance is dismissed
- 2.Costs of the application awarded to the 1st Respondent
- On appeal from
- High Court of Kenya
- Civil Suit No. 16 of 2011
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya; Section 15(1) and 19 of the Supreme Court Act No. 7 of 2011; Rule 24(1) of the Supreme Court Rules, 2012; Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sheila Nkatha Muthee (administrator of The Estate of Karl Jacobs Ruedin - Deceased) & 2 others v Michael Onyango Ochieng & 8 others[2025] KECA 293 (KLR)21 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Faud Mahamoud Mohamed v Diamond Trust Bank Kenya Limited & 1 other", Case Analysis (2023). Civil Application No. E074 of 2021 (as consolidated with Civil Suit No. 16 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1511/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.