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Court of AppealStruck OutApplication dated 14th November 2020 (arising from Civil Appeal No. 156 of 2019 consolidated with Civil Appeal No. 192 of 2019)· [2024] KECA 508 (KLR)

Kibutiri (Sued as the legal representative of Loise Wanja Kibutiri) v Njoro & 2 others (Sued as the legal representative of the Estate of James Njoro Kibutiri) & another (Civil Appeal (Application) 156 of 2019) [2024] KECA 508 (KLR)

Court of Appeal
26 April 2024
DMD. K. MusingaSKS. ole KantaiMGM. Gachoka
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a Supreme Court certification application filed 41 days late, confirming the 14-day filing deadline is strict.

What this practically means

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Executive summary

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This was an application, not a full appeal, by the legal representatives of the Estate of Loise Wanja Kibutiri seeking certification that their intended appeal to the Supreme Court under Article 163(4)(b) involved a matter of general public importance, together with a stay of execution of the Court of Appeal judgment of 25th September 2020 in Civil Appeal No. 156 of 2019 (consolidated with Civil Appeal No. 192 of 2019). The underlying dispute concerned entitlement to L.R. No. 165/1/3, about 127 acres, where Loise claimed a beneficial share by virtue of a Kshs. 12,000 contribution to the purchase price and an alleged trust; the Court of Appeal had varied the trial court's apportionment, awarding her 6.35 acres out of James's share and leaving Eliud's 63.5 acres intact. The application was unopposed and served but the respondents took no part. The applicant's counsel, relying on Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, urged that the intended appeal would clarify the doctrine of resulting trust, when beneficial rights vest, and how unascertained contributions are treated, and contended that the doctrine of equality is equity was misapplied. During the hearing the applicant abandoned the stay prayer, conceding the Court had no jurisdiction to stay its own judgment. The Court held that the application, filed forty-one days after judgment without any extension of time, breached the fourteen-day window in rule 40(b) of the Court of Appeal Rules 2010 (now rule 42 of the 2022 Rules) and was therefore incompetent. It struck out the application and, because the respondents did not participate, made no orders as to costs. The decision below was not otherwise disturbed.

Key legal issues

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01

Timeliness and competence of a certification application under rule 40(b) of the Court of Appeal Rules

Holding

An application filed 41 days after judgment, without any extension of time, is incompetent and must be struck out

Reasoning

Rule 40(b) of the Court of Appeal Rules 2010 (now rule 42 of the 2022 Rules) requires a certification application to be made within fourteen days of the decision. The application was filed on 5th November 2020, forty-one days after the judgment of 25th September 2020. No extension of time had been sought or granted before filing. The Court held that where an applicant has good reasons for delay, the proper course is to invoke the extension-of-time provisions; absent that, the Court could not take any further step and struck the application out.

p. 3
02

Jurisdiction to grant a stay of execution of the Court of Appeal's own judgment

Holding

The Court has no jurisdiction to grant a stay of execution of its own judgment, as the applicant herself conceded in abandoning that prayer

Reasoning

The application initially sought both leave to appeal to the Supreme Court and a stay of execution of the Court of Appeal judgment of 25th September 2020. At the hearing, counsel for the applicant abandoned the stay prayer, acknowledging that the Court lacks jurisdiction to stay its own judgment. The Court recorded this abandonment, leaving only the certification question for determination, which failed on the ground of untimeliness.

p. 3

Legal principles established

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  • An application for certification under rule 40(b) of the Court of Appeal Rules must be filed within fourteen days of the decision; late filing without a prior extension of time renders the application incompetent and the court cannot entertain it.

Court orders

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  1. 1.The application dated 14th November 2020 is struck out as incompetent
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a) and (b)
  • Supreme Court Rulesrule 24
  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rules 2010rules 1(2), 40(b) and 43
  • Court of Appeal Rules 2022rule 42
  • Business Names Act

Cases cited (1)

  • Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
    [2013] eKLR
On appeal from
High Court (Environment and Land Court)
ELC Suit No. 94 of 2001
Jurisdiction invoked
Article 163(4)(b) of the Constitution; rule 24 of the Supreme Court Rules; sections 3A and 3B of the Appellate Jurisdiction Act; rules 1(2) and 43 of the Court of Appeal Rules

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, "Kibutiri (Sued as the legal representative of Loise Wanja Kibutiri) v Njoro & 2 others (Sued as the legal representative of the Estate of James Njoro Kibutiri) & another (Civil Appeal (Application) 156 of 2019) [2024] KECA 508 (KLR)", Case Analysis (2024). Application dated 14th November 2020 (arising from Civil Appeal No. 156 of 2019 consolidated with Civil Appeal No. 192 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/508/eng@2024-04-26

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