Frann Investments Limited v Kenya Anti Corruption Commission & 6 others (Civil Application E077 of 2024) [2025] KECA 1707 (KLR)
The bottom line
#The Court of Appeal refused to send Frann Investments' Mombasa land case to the Supreme Court, ruling its issues lacked general public importance.
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 applicant has raised matters of general public importance worthy of certification for appeal to the Supreme Court under Article 163(4)(b) of the Constitution and section 15B of the Supreme Court Act
Key legal issues
#Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b)
No. The proposed issues are settled law (bona fide purchaser doctrine per Dina Management), do not transcend the parties' interests, and partly seek to raise matters never determined in the courts below.
The Court applied the settled test from Hermanus Phillipus Steyn: the applicant bears the burden of demonstrating that the issues transcend the litigation interests of the parties and bear on the public interest, that any point of law is substantial, and that such questions arose and were judicially determined in the courts below. The Court found the proposed questions reducible to recourse for a purchaser from one without good title, a matter already settled by the Supreme Court in Dina Management. The limitation and joinder complaints were either never litigated below or raised no point of public importance. Relitigating evidence before the Supreme Court would be a routine invocation of a court of last resort.
Whether questions not raised or determined in the courts below can ground a certification application
No. Certification requires questions that arose and were the subject of judicial determination in the lower courts.
The Court noted that the limitation of actions issue under section 42(1)(d) of the Limitation of Actions Act was not raised as an issue for determination before the trial court or the Court of Appeal, and that the compensation claim for developments was never counterclaimed. Relying on the Steyn criteria, questions of law must have arisen in the courts below and been the subject of judicial determination before they can support certification to the Supreme Court.
Legal principles established
#- For certification under Article 163(4)(b), the intending appellant must show that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest; where a point of law is raised it must be substantial and must have arisen and been determined in the courts below.
- The Supreme Court's appellate jurisdiction under Article 163(4) is not to be invoked routinely; it is a court of last resort, not a regular court of appeal against orders of the Court of Appeal.
- A question of law or fact which was not addressed at trial or on appeal cannot be raised before the Supreme Court.
- There is no novel question on the legality of a title held by a subsequent owner whose root of title was tainted with illegality; a bona fide purchaser must trace title to the first allotment, and a title document alone is insufficient proof of ownership.
Court orders
#- 1.The Notice of Motion dated 5th July 2024 seeking certification and leave to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya (Mombasa)
- Consolidated suits concerning LR No. MN/III/293
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution and section 15B of the Supreme Court Act (certification of matter of general public importance)
Relief refused
#Certification that Mombasa Civil Appeal No. E038 of 2021 raises issues of general public importance and that the intended appeal be certified as fit to be heard by the Supreme Court
The application did not meet the threshold in Hermanus Phillipus Steyn; no novel issues of general public importance were raised, the matters did not transcend the parties' interests, and questions not determined in the courts below cannot be raised before the Supreme Court
Costs
The Notice of Motion dated 5th July 2024 fails and is hereby 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.
Consequently, the Notice of Motion dated 5th July 2024 fails and is hereby dismissed with costs to the 1st respondent.
we arrive at the inescapable conclusion that the application before us for certification and leave to appeal to the Supreme Court pursuant to Article 163 (4)(b) of the Constitution and section 15B of the Supreme Court Act does not meet the required threshold as enunciated in the case of Phillipus Steyn
the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought
determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
the intended appeal which the applicant intends to raise should not be a camoufiage as a moment for a party to relitigate its case in a difierent forum.
Issues in the judgment
#The applicant's submissions refer to a title 'issued over 40 years ago' while the judgment records the original allocation as occurring on 8th February 1995, an internal inconsistency in the chronology.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frann Investments Limited v Kenya Anti Corruption Commission & 6 others (Civil Application E077 of 2024) [2025] KECA 1707 (KLR)", Case Analysis (2025). Notice of Motion dated 5th July 2024 (arising from Mombasa Civil Appeal No. E038 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1707/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.