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Court of AppealDismissedCivil Application (ruling on application dated December 1, 2021, arising from Civil Appeal No. 82 of 2018)

Caroget Investment Limited v Aster Holdings Limited & 4 others (Civil Appeal (Application) 82 of 2018) [2023] KECA 1559 (KLR)

Court of Appeal
24 November 2023
5,876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed it cannot stay its own final judgment or extend time for a Supreme Court appeal; private property disputes rarely qualify for Supreme Court certification.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Okwengu, Mativo & Ngenye-Macharia, JJ.A.) disposed of an application dated December 1, 2021 by the applicant, whose appeal and cross-appeal in Civil Appeal No. 82 of 2018 had been dismissed on December 6, 2019, upholding an Environment and Land Court judgment (Obaga, J.) which upheld the 1st respondent's title to LR No 1870/V/247 and awarded Kshs.100,000,000/= damages for trespass against the applicant. The applicant sought three substantive orders: stay of this court's judgment, certification of the matter as fit for appeal to the Supreme Court with leave, and extension of time to file the Supreme Court appeal. The court framed three issues: its jurisdiction to stay its own final judgment, its jurisdiction to extend time for a Supreme Court notice of appeal, and whether certification criteria under article 163(4)(b) were met. It reaffirmed Dickson Muricho Muriuki and Jennifer Koinante Kitarpei, holding that after final judgment the court is functus officio and the proper forum for stay is the Supreme Court. It further held that rule 4 of the Court of Appeal Rules cannot extend time for filing a notice of appeal in the Supreme Court, as that is not a matter governed by those Rules. On certification, applying Malcolm Bell v arap Moi and Hermanus Steyn, the court found the issues were ordinary private-property disputes that did not transcend the parties' interests, were not all subject to judicial determination below, and that the applicant had merely enumerated issues without concise demonstration of general public importance. The application was dismissed with costs to the 1st respondent.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to grant orders of stay of execution pending appeal to the Supreme Court
  2. 2.Whether this Court has jurisdiction to extend time to file an appeal to the Supreme Court
  3. 3.Whether the applicant has satisfied the criteria for certification to appeal to the Supreme Court under article 163(4)

Key legal issues

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01

Jurisdiction to stay the Court of Appeal's own final judgment pending appeal to the Supreme Court

Holding

The Court of Appeal lacks jurisdiction; it becomes functus officio upon delivering final judgment, and stay must be sought in the Supreme Court.

Reasoning

Relying on Dickson Muricho Muriuki v Timothy Kagondu Muriuki and Jennifer Koinante Kitarpei v Alice Wahito Ndegwa, the court reaffirmed that after final judgment the court must down its tools in the absence of statutory authority. Its residual jurisdiction under article 163(4)(b) extends only to certification of matters for appeal to the Supreme Court, not to stay of its own decisions.

p. 5
02

Jurisdiction to extend time for filing a notice of appeal to the Supreme Court

Holding

Rule 4 of the Court of Appeal Rules cannot be used to extend time for a Supreme Court notice of appeal because such filing and its timelines are not governed by the Court of Appeal Rules.

Reasoning

The court noted that rule 31 of the Supreme Court Rules, 2012 governed notices of appeal to the Supreme Court and required filing within fourteen days of judgment. Since the Court of Appeal Rules do not provide for filing or timelines of notices of appeal to the Supreme Court, rule 4 of those Rules cannot assist, and extension of time is outside the court's province.

p. 6
03

Whether the intended appeal raises matters of general public importance under article 163(4)(b)

Holding

No: the issues are private-law disputes over ownership of property and do not transcend the parties' interests; nor were some issues subject of judicial determination below.

Reasoning

Applying the Malcolm Bell v hon Daniel Torotich arap Moi principles, the court held that the applicant's issues - sanctity of title, lifting of the corporate veil, article 40 property rights - are purely private rights. The alleged conflicting precedents on interlocutory rulings were distinguishable because those concerned injunctions, whereas the issue here was a jurisdictional determination that became res judicata. Questions of law not determined below cannot be certified.

p. 10
04

Whether a determination of jurisdiction at the interlocutory stage is binding at trial (res judicata argument)

Holding

The applicant's argument was distinguishable from Uhuru Highway and Julia Moracha, which concerned interlocutory injunction rulings; here the jurisdictional issue was decided as a point of law preliminarily and became res judicata.

Reasoning

The court distinguished authorities on interlocutory injunction rulings under order 42 rule 6, where merits are left to trial. A preliminary objection on jurisdiction, if successfully determined, disposes of the issue finally under the doctrine of res judicata in section 7 of the Civil Procedure Act, and cannot be reopened at trial.

p. 8
05

What constitutes a substantial question of law for certification purposes

Holding

A substantial question of law must be debatable, not previously settled, and must materially affect the decision and/or the parties' rights; it must bear significantly on the public interest.

Reasoning

Drawing on State Bank of India v S N Goyal and Chunilal V Mehta & Sons Ltd v Century SPG & Manufacturing Co Ltd, the court adopted the test that a substantial question of law either is of general public importance or directly and substantially affects the rights of the parties and is not finally settled. Glencore Energy (UK) Ltd v Kenya Pipeline was cited for the requirement that a point of law must be substantial and bear significantly on the public interest.

p. 9

Legal principles established

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  • Once the Court of Appeal has pronounced final judgment it is functus officio and has no jurisdiction to stay its own orders pending appeal to the Supreme Court; the proper forum for stay is the Supreme Court.
  • The proper forum to seek and apply for stay of execution after judgment by the Court of Appeal is the Supreme Court.
  • The Court of Appeal has no power under rule 4 of its Rules to extend time for filing a notice of appeal to the Supreme Court, as that is not a matter provided for by the Court of Appeal Rules.
  • A question of law must have arisen in the courts below and been the subject of judicial determination before it can qualify as a matter of general public importance meriting certification to the Supreme Court.
  • Mere enumeration of issues as matters of general public importance is insufficient; the applicant must concisely demonstrate specific elements of general public importance.

Court orders

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  1. 1.Decline to grant any of the orders sought
  2. 2.Application dated December 1, 2021 dismissed with costs to the 1st respondent

The bench

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

majority
majority
On appeal from
Environment and Land Court
ELC No 175 of 2015 (appeal in this court being Civil Appeal No. 82 of 2018)
Jurisdiction invoked
Article 163(4)(b) of the Constitution (certification/leave to appeal to the Supreme Court), sections 15 and 16(2) of the Supreme Court Act, rule 33(1) of the Supreme Court Rules, 2020, and rules 4, 39, 40 & 47 of the Court of Appeal Rules

Relief refused

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Stay of the judgment of this court delivered on December 6, 2019

The court is functus officio after delivering final judgment; no jurisdiction to stay its own decision

p. 5

Extension of time to file a notice of appeal to the Supreme Court

Filing and timelines for a notice of appeal to the Supreme Court are not governed by the Court of Appeal Rules; rule 4 is of no assistance

p. 6

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

The issues raised are ordinary mundane issues in a private property dispute and do not transcend the litigation interests of the parties

p. 10

Costs

The application dated December 1, 2021 is dismissed with costs to the 1st respondent.

Quotable passages

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

once this court has pronounced the final judgment, it is functus officio and must down its tools
p. 4functus officio - no jurisdiction to stay own final judgment
the proper forum to seek and apply for stay of execution after judgment by the Court of Appeal is the Supreme Court.
p. 4correct forum for stay pending appeal to Supreme Court
even if we were inclined to extend time, it is not within our province.
p. 6no jurisdiction to extend time for Supreme Court notice of appeal
For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
p. 6certification test under article 163(4)(b)
In the circumstances, we find and hold that the applicant’s application is devoid of merit. Accordingly, we decline to grant any of the orders sought. Therefore, the application dated December 1, 2021 is hereby dismissed with costs to the 1st respondent.
p. 10final orders - dismissal with costs

Issues in the judgment

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minor

Internal inconsistency in the date of the Court of Appeal judgment: the ruling at one point describes a stay sought of 'the judgment of this court delivered on October 3, 2019' while elsewhere and throughout the judgment is dated December 6, 2019

minor

Inconsistent spelling of the applicant's cited case name across the judgment

minor

Typographical error in constitutional article referenced ('article 164 (4)') where article 163(4) is evidently meant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Caroget Investment Limited v Aster Holdings Limited & 4 others (Civil Appeal (Application) 82 of 2018) [2023] KECA 1559 (KLR)", Case Analysis (2023). Civil Application (ruling on application dated December 1, 2021, arising from Civil Appeal No. 82 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1559/eng@2023-11-24

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