JTG Enterprises Limited v China Gezhouba Group & another (Civil Application Sup E011 of 2025) [2025] KECA 2130 (KLR)
The bottom line
#The Court of Appeal refused to let a subcontractor's payment dispute reach the Supreme Court, ruling it was a private contract matter, not a public interest issue.
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 raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 2.Whether the applicant's 17 proposed questions transcend the circumstances of the particular case and bear on the public interest
- 3.Whether the questions raised in the courts below were the subject of judicial determination
- 4.Whether the concerns raised are legal matters or policy issues
Key legal issues
#Whether a private commercial dispute over contract construction and payment under a subcontract can be certified as raising a matter of general public importance
No. The dispute revolves around construction of the Main Contract, Subcontract and Supplementary Agreements; the proposed questions do not transcend the case or bear on the public interest.
Applying the Steyn principles, the court held that the applicant's 17 questions are rooted in private contractual rights, are repetitive, and concern the construction of contracts, a settled area of law. The Court of Appeal had judiciously applied settled principles of contract construction, and the applicant sought to re-litigate the merits of the appeal rather than identify a substantial question of law of public significance.
Whether questions never pleaded or determined in the courts below can ground certification
No. Applying Steyn, such questions cannot constitute matters of general public importance.
It was asserted without controvert that the applicant's questions were never pleaded or considered at trial or on appeal. Under the Steyn criteria, a question of law must have arisen in the courts below and been the subject of judicial determination. Many of the questions were reform-oriented or policy issues better suited to Parliament, not the apex court.
Whether policy concerns about subcontractor payment practices in public projects qualify for certification
No. Policy issues are not legal matters qualifying certification for appeal to the Supreme Court.
The court found that the applicant's concerns - direct recovery rights for subcontractors, privity reform, fiduciary obligations of main contractors, and payment safeguards in public procurement - are matters of law reform and industry policy, better addressed by Parliament or through mechanisms such as tripartite agreements, not through certification under Article 163(4)(b).
Legal principles established
#- Certification under Article 163(4)(b) requires the intending appellant to show that the issue transcends the particular case, bears significantly on the public interest, arose in the courts below and was the subject of judicial determination; questions not pleaded or determined below, and policy concerns, cannot support certification.
Court orders
#- 1.Certification for appeal to the Supreme Court under Article 163(4)(b) is refused
- 2.Leave to appeal to the Supreme Court is refused
- 3.The application is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (trial court referred to through Court of Appeal judgment)
- Nairobi Civil Appeal No. E793 of 2023
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya 2010 - certification that a matter of general public importance is involved
Relief refused
#Certification under Article 163(4)(b) that the intended appeal raises matters of general public importance
The proposed questions do not transcend the circumstances of the case, were not pleaded or determined in the courts below, and are policy rather than legal issues
Leave to appeal to the Supreme Court against the Court of Appeal judgment dated 20 December 2024
Application falls short of the Hermanus Phillipus Steyn test for certification
Costs
The application is dismissed with costs to the 1st respondent ("we find that the application is unmerited and we disallow it 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.
We are not persuaded that the questions that have been proposed to be canvassed on appeal transcend the circumstances of this particular case with the efiect that they have a bearing on public interest.
Ultimately, the instant application falls short of the test established by the Supreme Court.
The upshot is that we find that the application is unmerited and we disallow it with costs to the 1st respondent.
interpretation of contractual terms is a well-settled matter in law that does not in itself constitute a substantial legal issue warranting the attention of the Apex Court.
Issues in the judgment
#The judgment refers to certification under Article 163(4) but alternates between clause (a) (in the applicant's motion) and clause (b) (in the court's framing), and the body of the judgment is numbered irregularly (paragraph 8 appears twice), which may complicate citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JTG Enterprises Limited v China Gezhouba Group & another (Civil Application Sup E011 of 2025) [2025] KECA 2130 (KLR)", Case Analysis (2025). Nairobi Civil Appeal No. E793 of 2023 (Application dated 5th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2130/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.