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Court of AppealDismissedApplication arising from Nakuru Civil Appeal No. 94 of 2018· [2024] KECA 1318 (KLR)

Joseph Chege Gatua v Charles Mwangi Mathenge

Court of Appeal of Kenya
27 September 2024
3,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal refused to send a Nakuru land dispute to the Supreme Court, ruling that simply being unhappy with a judgment is not a reason to appeal further.

What this practically means

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Executive summary

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By a Notice of Motion dated 3rd April 2024, the applicant sought certification and leave to appeal to the Supreme Court against the Court of Appeal's judgment in Nakuru Civil Appeal No. 94 of 2018 delivered on 22nd March 2024, in which the Court had overturned the Environment and Land Court's decision and upheld the validity of a magistrates' court judgment adopting a Land Disputes Tribunal award over plot B 132 Mwenje. The application was brought under Articles 159 and 163(4)(b) of the Constitution, section 3B of the Appellate Jurisdiction Act and rules 1(2) and 42 of the Court of Appeal Rules, 2022. The Court restated the settled certification principles from Sum Model Industries, Mitubell Welfare Society, Compton v Wiltshire, Hermanus Phillipus Steyn and the Kenya Plantation and Agricultural Workers Union case, emphasizing that certification is warranted only where the intended appeal raises a substantial question of law of general public importance whose impact transcends the litigation interests of the parties. The applicant's grounds - including that the tribunal award had crystallized into a judgment, that the repealed Land Disputes Tribunal Act provided no procedure to challenge such a judgment, that the ELC had original and supervisory jurisdiction, and complaints about limitation, abatement and substantive justice - were held to amount to mere dissatisfaction with the merits. The applicant had not demonstrated any conflicting decisions or any question affecting the general public, and since the Land Disputes Tribunal Act is long repealed, the dispute was party-specific. The Court dismissed the application in its entirety with costs to the respondent.

Key legal issues

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01

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not. The applicant identified no question transcending the parties' dispute, no conflicting decisions, and the repealed Land Disputes Tribunal Act makes the dispute party-specific.

Reasoning

The Court applied the settled principles from Hermanus Phillipus Steyn and KPAWU: the intending appellant must identify and concisely set out the specific elements of general public importance, showing that the issue transcends the circumstances of the case and bears significantly on the public interest. The applicant's grounds, analysed, amounted to dissatisfaction with the merits of the Court of Appeal judgment - including complaints about procedure following crystallisation of the tribunal award, limitation of actions, and supervisory jurisdiction - none of which was demonstrated to be a substantial point of law with significant public bearing. The Act being long repealed, the dispute cannot affect the general public.

p. 6
02

Whether the application is properly characterised as an attack on the merits rather than a certification question

Holding

Yes. The grounds sought to re-litigate the merits of the Court of Appeal judgment, which is impermissible on a certification application.

Reasoning

The Court held that on certification the applicant must demonstrate how the questions raised amount to issues of general public importance transcending the dispute. Analysis of the applicant's multiple grounds - including alleged errors in summing up facts, condonation of fraud, the decree's age under the Limitation of Actions Act, abatement, and error apparent on the face of the record - showed they were directed at the correctness of the judgment, not at any recurring legal question of public import.

p. 6

Legal principles established

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  • Certification and grant of leave to appeal to the Supreme Court under Article 163(4)(b) is only appropriate where the matter raises a question of general public importance whose consequences are substantial, broad-based, transcend the litigation interests of the parties and bear upon the public interest; mere dissatisfaction with a judgment is insufficient.
  • On a certification application, the test is not whether the Court of Appeal would have reached a different conclusion on the same facts, nor the merit or otherwise of its judgment; the applicant must demonstrate how the questions raised amount to issues of general public importance.
  • Good practice is to originate an application for certification in the Court of Appeal, which is better placed to certify whether a matter of general public importance is involved; dissatisfaction lies in a review to the Supreme Court under Article 163(5).

Court orders

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  1. 1.The Notice of Motion dated 3rd April 2024 seeking certification and leave to appeal to the Supreme Court is dismissed in its entirety
  2. 2.Costs of the application to the respondent
On appeal from
Court of Appeal (Nakuru)
Nakuru Civil Appeal No. 94 of 2018
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya (certification that a matter of general public importance is involved), with Articles 159 and 163(5) and section 3B of the Appellate Jurisdiction Act and rules 1(2) and 42 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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Cite this brief

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Cite this brief

Caselaw, "Joseph Chege Gatua v Charles Mwangi Mathenge", Case Analysis (2024). Application arising from Nakuru Civil Appeal No. 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1318/eng@2024-09-27

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