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Court of AppealDismissedNotice of Motion dated 20th April 2023· [2024] KECA 242 (KLR)

Mogwanja & another v Roskan Investments Limited & 3 others (Civil Appeal (Application) 4 of 2019) [2024] KECA 242 (KLR)

Court of Appeal
8 March 2024
2,840 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 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

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Executive summary

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The applicants, two of three sisters who inherited 'the Island Farm' in Limuru under their mother's 1976 will, sought leave of the Court of Appeal to appeal to the Supreme Court against the Court of Appeal's judgment of 16th December 2022, which had reversed the High Court's judgment of 12th November 2018 that had found in their favour on their claim that their brother James held the suit property on a constructive trust and had sold it in breach of that trust. The application also peripherally sought a stay, which was rightly abandoned on the authority of Dickson Muricho Muriuki, Southern Shield Holdings and Jamii Bora Bank, all holding that only the Supreme Court may grant stay once leave is granted. The Court sustained the respondents' preliminary objection on competency: under rule 41(2) of the Court of Appeal Rules, 2022 the application had to be filed within fourteen days, yet it was lodged about five months late, with no explanation and no application for extension of time. On the merits, applying the Hermanus Phillipus Steyn criteria as restated in the Kenya Plantation Workers Union case, the Court held the issues identified - interpretation of contracts, testamentary freedom under section 5 of the Law of Succession Act, and equality of female legatees - were raised for the first time, were fact-bound, private to the parties, and did not transcend the case or bear on public interest, nor was any contradictory precedent on construction of contracts or wills shown. The Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

Competency of a certification application filed out of time without extension of time

Holding

The application was incompetent for want of timely filing; the applicants' casual response to a fundamental jurisdictional issue could not save it

Reasoning

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.

p. 4
02

Whether the intended appeal involves matters of general public importance warranting certification to the Supreme Court

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 20th April 2023 is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 163(4)(a) and (b)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 19(3)(b)
  • Court of Appeal Rules, 2022rule 41(2)
  • Supreme Court Rulesrule 33
  • Law of Succession Actsection 5
  • Supreme Court Actsection 15B

Cases cited (7)

  • Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 Others
    [2013] eKLR
  • Southern Shield Holdings Limited & 2 Others v Delphis Bank Limited & Another
    [2019] eKLR
  • Jamii Bora Bank Limited v Minnie Mbue
    [2021] eKLR
  • Karanja v. Ndirangu and Another
    [2021] KECA 57
  • Hermanus Phillipus Stevn v Giovanni Gnecchi Ruscone
    [2013] eKLR
  • Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and Allied Workers' Union (Kefhau) represented by its Promoters David Benedict Omulama & 9 Others
    [2018] eKLR
  • Hermanus Phillipus Steyn v Giovanni Gnecchi - Ruscone
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

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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, "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.