Mogwanja & another v Roskan Investments Limited & 3 others (Civil Appeal (Application) 4 of 2019) [2024] KECA 242 (KLR)
The bottom line
#The Court of Appeal refused to send a family land dispute to the Supreme Court because the application was filed five months late and raised no issue of public importance.
What this practically means
#Executive summary
#Key legal issues
#Competency of a certification application filed out of time without extension of time
The application was incompetent for want of timely filing; the applicants' casual response to a fundamental jurisdictional issue could not save it
Rule 41(2) of the Court of Appeal Rules, 2022 requires such applications to be filed within fourteen days of the decision. The application here was lodged about five months late. Counsel offered no explanation for the delay and no application for extension of time was made, so the respondents' objection was sustained as irresistible.
Whether the intended appeal involves matters of general public importance warranting certification to the Supreme Court
It does not. The issues were raised for the first time on certification, are fact-bound and private to the parties, and the law on construction of contracts and wills is settled with no contradictory precedent shown
Applying the Hermanus Phillipus Steyn criteria, a point of law must be substantial, arise and be determined in the courts below, and transcend the particular case. The applicants' issues on interpretation of contracts, testamentary freedom and equality of legatees were raised for the first time, did not impact society, and no conflicting precedents on construction of contracts or wills were brought to the Court's attention.
Legal principles established
#- The Court of Appeal lacks jurisdiction to stay execution of its own judgment pending an intended appeal to the Supreme Court; such stay may only be sought from the Supreme Court once leave is granted
- An application for certification under rule 41(2) of the Court of Appeal Rules, 2022 must be filed within fourteen days of the decision; unexplained delay of months renders it incompetent absent extension of time
- Certification requires a question of law that arose and was judicially determined in the courts below and which transcends the particular case and bears on public interest; factual contests between parties do not qualify
Court orders
#- 1.The Notice of Motion dated 20th April 2023 is dismissed with costs to the respondents
- On appeal from
- High Court
- Jurisdiction invoked
- Application for certification/leave to appeal to the Supreme Court under Article 163(4)(a) and (b) of the Constitution, rule 33 of the Supreme Court Rules and rule 41(2) of the Court of Appeal Rules, 2022
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.
- Aluso v Aggrey Odiwuor Kenyatta & 2 others (Environment and Land Appeal E263 of 2026) [2026] KEELC 1592 (KLR)[2026] KEELC 1592 (KLR)23 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mogwanja & another v Roskan Investments Limited & 3 others (Civil Appeal (Application) 4 of 2019) [2024] KECA 242 (KLR)", Case Analysis (2024). Notice of Motion dated 20th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/242/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.