Gachuhi v Njoroge (Suing as the Administrator of the Estate of NjorogeThiaru) & 2 others (Civil Appeal (Application) E087 of 2021) [2025] KECA 1360 (KLR)
The bottom line
#The Court of Appeal refused to let a land dispute go to the Supreme Court, confirming that fact-specific cases and fresh arguments do not qualify.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal to the Supreme Court raises a matter of general public importance warranting certification and leave under Article 163(4) of the Constitution
- 2.Whether the Court has jurisdiction to grant a stay of execution of the ELC decree pending the intended appeal to the Supreme Court
Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)
It does not; the questions are fact-specific and the alleged conveyancing practice was not raised or determined below.
Applying the Steyn criteria, the Court held the law on sale, transfer and registration of land and on the burden of proof is settled. The alleged conveyancing practice of inserting dates after signing was never raised in the ELC or in the appeal, so the Court could not make a finding on it. Findings below rested on the evidence adduced, so the intended appeal does not transcend the parties' dispute.
Whether the Court can grant stay of execution pending the intended Supreme Court appeal
It cannot; Rule 5(2)(b) does not confer such jurisdiction after judgment.
The Court adopted its prior holding in Dickson Muricho Muriuki v Timothy Kagondu Muruiki that Rule 5(2)(b) applies only to interlocutory applications pending hearing and determination of a main appeal before the Court of Appeal, and does not extend to applications touching the merits of a suit after judgment, such as one pending a further appeal to the Supreme Court.
Legal principles established
#- Rule 5(2)(b) of the Court of Appeal Rules confers power to hear interlocutory applications pending the hearing and determination of a main appeal before the Court of Appeal, and does not confer power to entertain applications concerning the merits of a suit after judgment, including pending a further appeal to the Supreme Court.
- A matter qualifies for certification as one of general public importance only where its impact and consequences are substantial, broad-based, transcending the litigation-interests of the parties and bearing upon the public interest, and the intending appellant bears the burden of demonstrating this.
- An issue of law cannot form the basis of a certification application unless it arose in the courts below and was the subject of judicial determination.
Court orders
#- 1.The applicant's Notice of Motion dated 29th March 2023 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nairobi
- Nairobi ELC No. 462 of 2012
- Jurisdiction invoked
- Article 163(4) of the Constitution; Rule 5(2)(b) of the Court of Appeal Rules considered on the stay prayer
Relief refused
#Certification/leave to appeal to the Supreme Court
The intended appeal does not raise a matter of general public importance; the issues are fact-specific and were not raised below
Stay of execution of the decree in Nairobi ELC No. 462 of 2012
Rule 5(2)(b) does not confer power to grant stay pending an appeal to the Supreme Court after judgment
Costs
The application is dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant's Notice of Motion application of 29th March 2023 is accordingly found not to have merit, and is dismissed with costs to the 1st respondent.
this Court has no jurisdiction to grant such an order under Rule 5(2)(b) of the Court of Appeal Rules, which is the operative law.
the issues and question raised by the applicant in our view do not qualify as substantial questions of law or matters of general public importance, nor are they capable of transcending the dispute between the parties in this particular case.
the applicant did not indicate that this particular argument or issue was raised in the ELC or during the hearing of the appeal in this Court for consideration, and having not been a subject of the impugned decision by this Court, we cannot purport to make a finding on this practice one way or another at this stage.
Issues in the judgment
#Malformed quotation from the impugned judgment: paragraph 16 is empty and the quoted passage begins mid-way in paragraph 17, leaving '22.' as an orphaned paragraph marker.
Application was 'lodged... on 29th March 2023' but the supporting affidavit is 'deponed to on 23rd March 2023', i.e. the affidavit predates the application it supports.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachuhi v Njoroge (Suing as the Administrator of the Estate of NjorogeThiaru) & 2 others (Civil Appeal (Application) E087 of 2021) [2025] KECA 1360 (KLR)", Case Analysis (2025). Civil Appeal E087 of 2021 (ruling on Notice of Motion dated 29th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1360/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.