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Court of AppealDismissedCivil Application No. 96 of 2019 (arising from Civil Appeal (Application) No. 247 of 2010)

Kiai v Gicheru & 4 others (Civil Application 3 of 2019) [2023] KECA 1587 (KLR)

Court of Appeal
27 October 2023
3,545 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 dismissed a request to send a land dispute to the Supreme Court because it was filed over four years late and raised no issue of public importance.

What this practically means

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Executive summary

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The applicant, Charles Alexander Kiai, moved the Court of Appeal at Nyeri by Notice of Motion dated 17th August 2019 seeking certification under Article 163(4)(b) of the Constitution that a matter of general public importance was involved in his intended appeal to the Supreme Court against a ruling of the Court of Appeal (Waki, J.A.) of 17th June 2015, which had dismissed his application for leave to seek reinstatement of his appeal in Civil Appeal No. 247 of 2010. The background was a land dispute over parcel Othaya/Itemeini/1045, in which a Land Disputes Tribunal award in favour of the 1st respondent had been adopted as a judgment of the Chief Magistrate's Court and a title issued to her; the applicant's judicial review challenge was struck out, his appeal dismissed for non-attendance, and his reinstatement attempts failed. The Court framed three issues: its jurisdiction, timeliness, and whether a matter of general public importance was raised. It held that under Article 163(4)(b) and Section 15B of the Supreme Court Act, the certification application properly lay before the Court of Appeal at first instance, rejecting the respondents' jurisdictional objection. However, applying Rule 40 of the Court of Appeal Rules 2010, it found the application filed four years, two months and nine days out of time, without extension of time or reasonable explanation, and incompetent. On the merits, applying the Hermanus Phillipus Steyn principles, it held the intended appeal raised no substantial question of law transcending the parties' private land dispute; the Article 159(2)(d) technicalities question was already settled. The application was dismissed with costs to the respondents.

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 entertain the instant application
  2. 2.Whether the applicant's application was filed out of time
  3. 3.Whether the application raises a matter of general public importance to be certified for appeal before the Supreme Court

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to entertain an application for certification under Article 163(4)(b)

Holding

The Court of Appeal has concurrent jurisdiction with the Supreme Court to hear certification applications at first instance, and the application before it was properly before the Court

Reasoning

Article 163(4)(b) confers jurisdiction on both the Supreme Court and the Court of Appeal to certify matters of general public importance. Section 15B of the Supreme Court Act requires such applications to be filed before and determined by the Court of Appeal at first instance, consistent with the Supreme Court's decision in Sum Model Industries. The respondents' objection that the application should have been filed in the Supreme Court under Section 15 therefore failed.

p. 4
02

Whether the application was filed out of time and thereby incompetent

Holding

The application was filed four years, two months and nine days after the decision, in violation of Rule 40 (now Rule 42), without extension of time or reasonable explanation, and was incompetent

Reasoning

The applicable procedural provision was Rule 40 of the Court of Appeal Rules 2010, not Rule 39(b), since the application was for certification under Article 163(4)(b). Rule 40 requires such an application to be made within fourteen days of the decision. The application filed on 26th August 2019 against a decision of 17th June 2015 was grossly out of time, no extension had been sought and no reasonable explanation for the delay was furnished.

p. 5
03

Whether the intended appeal raises a matter of general public importance warranting certification

Holding

The intended appeal raises no uncertainty in the law or substantial question transcending the parties' dispute; the issues raised, including the application of Article 159(2)(d), have already been settled in prior decisions

Reasoning

Applying the Hermanus Phillipus Steyn principles, the applicant had to show that the issues transcend the circumstances of the case and bear significantly on public interest. The complaints about procedural technicalities and Article 159(2)(d) have been widely addressed by this Court and the Supreme Court in Raila Odinga and Musa Cherutich Sirma. The applicant also failed to show how a private land dispute between himself and the 1st respondent had any broader public dimension.

p. 7

Legal principles established

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  • An application for certification of a matter of general public importance under Article 163(4)(b) must, at first instance, be filed before and determined by the Court of Appeal
  • An application for a certification under Rule 40 (now Rule 42) of the Court of Appeal Rules must be filed within fourteen days of the decision sought to be appealed, and a filing outside that period without extension of time is incompetent
  • Mere apprehension of miscarriage of justice is not a sufficient basis for certifying an appeal to the Supreme Court; the issue must transcend the particular case and bear significantly on public interest

Court orders

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  1. 1.The Notice of Motion dated 17th August 2019 seeking certification of a matter of general public importance is dismissed

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Court of Appeal (single Judge, Waki, J.A.)
Civil Appeal (Application) No. 247 of 2010
Jurisdiction invoked
Article 163(4)(b) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 40 of the Court of Appeal Rules, 2010

Relief refused

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Certification that a matter of general public importance is involved in the intended appeal to the Supreme Court

The application was filed over four years out of time without explanation, and the intended appeal does not transcend the parties' circumstances or raise a substantial question of law bearing on public interest

p. 7

Costs

Application dismissed with costs to the respondents

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.

An application for certification shall be filed before, and determined by the Court of Appeal at the first instance.
p. 4forum for certification applications under Section 15B of the Supreme Court Act
The applicant did not seek extension of time to lodge the present application before filing the same. He has also not furnished this Court with any reasonable explanation why he took so long to file the instant application.
p. 5consequences of filing a certification application out of time
Further, the intended appeal does not raise an important question of law which has not been addressed before by the Court.
p. 7certification threshold - absence of unresolved question of law
In the end, we find no merit in this application and dismiss it with costs to the respondents.
p. 7disposition

Issues in the judgment

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minor

The judgment contains an unresolved editorial insertion in the recital of the applicant's grounds: "(please confirm)"

minor

The respondents' jurisdictional objection is framed around Section 15 of the Supreme Court Act, but the Court's discussion and quotation concern Section 15B; the copy supplied also contains OCR-degraded text (e.g. 'afiorded', 'suficient')

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, "Kiai v Gicheru & 4 others (Civil Application 3 of 2019) [2023] KECA 1587 (KLR)", Case Analysis (2023). Civil Application No. 96 of 2019 (arising from Civil Appeal (Application) No. 247 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1587/eng@2023-10-27

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