Emfil Limited v The Honourable Attorney General & 8 others
The bottom line
#The Court of Appeal refused to let Emfil Limited take its land dispute to the Supreme Court, ruling that striking out defences is too routine a matter to warrant Kenya's highest court.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raises a substantial question of law of general public importance
It does not. The only question before the Court of Appeal in the appeal was whether the trial judge properly exercised her discretion in striking out defences, and that issue is mundane and does not bear on the public interest.
The Court held it was only called upon to decide whether the trial judge exercised her discretion properly in striking out defences. Part of the decision was set aside and remitted for trial, so the Applicant's claimed substantial issues are pending before the trial court and were not determined by the Court of Appeal. Striking out applications are routine and their determination rarely affects the public interest.
Whether contradictory precedents create uncertainty in the law requiring Supreme Court resolution
No contradiction arises: the Court of Appeal found the Defendants whose defences were reinstated were not parties to the earlier decisions, so the earlier determinations could not properly apply to them.
The Applicant alleged its decision conflicted with prior Emfil decisions. The Court explained that the Defendants whose defences were reinstated were not parties to those earlier proceedings, and whether the prior determinations applied to them ought to emerge in the remitted proceedings. Thus no contradiction of precedent exists for the Supreme Court to resolve.
Whether issues not the subject of judicial determination in the courts below can found certification
They cannot. Complaints about the Attorney General's role, delay in delivery of judgment and other procedural issues did not arise before the Court or courts below.
Following the Steyn principles, questions of law must have arisen in the courts below and been the subject of judicial determination. The Applicant's contentions regarding the role of the Attorney General in appealing, the delay in delivering judgment under Order 21 Rule 1, and waiver of appeal rights by parties were never determined and therefore cannot be certified as matters of general public importance.
Legal principles established
#- Striking out of pleadings, being run-of-the-mill applications, cannot without more transcend the circumstances of a case or bear significantly on the public interest so as to warrant certification for appeal to the Supreme Court.
- Questions of law for certification must have arisen and been the subject of judicial determination in the courts below; issues merely argued in an application but not determined cannot found certification.
- Where a party still has an available avenue to ventilate its grievances, the court ought to be slow to certify a matter or grant leave to appeal to the Supreme Court.
Court orders
#- 1.The application for certification and leave to appeal to the Supreme Court is dismissed with costs to the Respondents
- On appeal from
- Environment and Land Court at Mombasa
- Environment and Land Court Case No. 113 of 2015
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification that an intended appeal to the Supreme Court involves a matter of general public importance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emfil Limited v The Honourable Attorney General & 8 others", Case Analysis (2024). Application dated 26th April 2023 arising from Mombasa Civil Appeal No. 37 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/665/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.