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Court of AppealDismissedNotice of Motion dated 29th September 2016 in Civil Appeal No. 172 of 2010

Chege v Karanja & 4 others (Civil Application 5 of 2016) [2026] KECA 1100 (KLR)

Court of Appeal of Kenya
12 June 2026
6,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let Lucy Chege take her long-running land dispute to the Supreme Court, finding no public importance and no power to grant a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Tuiyott, Nduma Nderi and Lilan, JJ.A.) on a Notice of Motion dated 29th September 2016 by Lucy Wamaitha Chege seeking certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution against the Court of Appeal judgment of 29th July 2016 in Civil Appeal No. 172 of 2010, together with a stay of execution of that judgment. The underlying dispute concerned a 47-acre parcel in Juja, Kiambu County sold in 1990 by the late Walter Karanja Muigai to the applicant and her advocate husband, the interested party. The Court of Appeal in 2016 had set aside the decision of Rawal, J., holding that the transaction offended section 46 of the Advocates Act, violated the doctrine of lis pendens under section 52 of the Transfer of Property Act, and lacked valid Land Control Board consent, rendering the sale null and void. In the present ruling, the Court noted the application was filed outside the fourteen days prescribed by rule 40 without any extension of time, but declined to dispose of it solely on that procedural slip. On the merits, it applied Hermanus Phillipus Steyn and allied authorities, holding that the intended appeal raised no matter of general public importance: the impugned judgment rested on settled legal principles applied to the particular facts, no uncertainty or lacuna in the law was shown, and certification is not a licence for a second bite at the cherry. The prayer for stay failed separately because the Court had become functus officio upon delivering its final judgment. The motion was dismissed in its entirety with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application, filed outside the fourteen-day period prescribed by rule 40 without an application for extension of time, was competent
  2. 2.Whether the intended appeal raises matters of general public importance warranting certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution
  3. 3.Whether a stay of execution and implementation of the judgment in Civil Appeal No. 172 of 2010 can issue pending the intended appeal

Key legal issues

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01

Timeliness and competence of the certification application

Holding

The application was filed on 29th September 2016, well outside the fourteen days prescribed by rule 40, and no extension of time was sought; however, the Court chose to consider the substantive certification question in the interest of justice and finality.

Reasoning

Rule 40 requires certification applications to be made informally at delivery of the decision or formally within fourteen days. The application here was filed two months late and no application under rule 4 for enlargement of time accompanied it, rendering it incompetent per Njowamu Construction. The Court nonetheless declined to dispose of the matter solely on this procedural slip, preferring to address the substantive threshold for certification given the age of the litigation and the desire for finality.

p. 8
02

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

Holding

It does not. The judgment appealed from turned on settled principles under section 46 of the Advocates Act, the doctrine of lis pendens, and the Land Control Act applied to the particular facts; no novel, unsettled or jurisprudentially significant issue was demonstrated.

Reasoning

Applying Hermanus Phillipus Steyn, Malcolm Bell and Town Council of Awendo, the applicant had to identify a precise issue of general public importance transcending the parties. The appeal below was decided on established principles applied to the specific transaction; the spouse's proprietary rights question was addressed within the factual matrix; no conflicting authorities, uncertainty or lacuna was shown; and the champerty doctrine was not central to the decision below. The Everton Coal Enterprises certification refusal by the Supreme Court on the same dispute lent further credence.

p. 9
03

Whether a stay pending the intended appeal could be granted

Holding

No. The Court of Appeal became functus officio upon delivery of its final judgment in Civil Appeal No. 172 of 2010 and lacks jurisdiction to grant a stay pending an intended appeal to the Supreme Court.

Reasoning

Relying on Dickson Muricho Muriuki v Timothy Kagondu Muriuki, the Court affirmed that once it has rendered its final judgment it has no jurisdiction to grant a stay of execution pending an intended appeal to the Supreme Court. The prayer for stay therefore had to fail independently of the certification question.

p. 10

Legal principles established

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  • Certification of a matter of general public importance requires that the issue transcend the circumstances of the particular case, bear significantly on the public interest, and raise a substantial point of law with consequences beyond the parties; mere dissatisfaction with the outcome does not suffice.
  • Certification is not a vehicle for litigants to relitigate factual and legal conclusions already reached by the Court of Appeal; there must be shown a genuine uncertainty or lacuna in the law.
  • After delivering final judgment, the Court of Appeal lacks jurisdiction to grant a stay of execution pending an intended appeal to the Supreme Court (functus officio).
  • An application for certification made outside the time prescribed by rule 40 of the Court of Appeal Rules, without a concurrent application for enlargement of time under rule 4, is incompetent.

Court orders

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  1. 1.The Notice of Motion dated 29th September 2016 is dismissed in its entirety
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

Jurisdiction invoked
Article 163(4)(b) of the Constitution; section 15 of the Supreme Court Act, 2011; sections 3A and 3B of the Appellate Jurisdiction Act; rules 5(2)(b) and 42 of the Court of Appeal Rules, 2010

Relief refused

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Certification and leave to appeal to the Supreme Court under Article 163(4)(b)

The intended appeal does not raise issues transcending the parties' interests or bearing significantly on the public interest; the questions raised were settled principles applied to the facts

p. 10

Stay of execution and implementation of the judgment in Civil Appeal No. 172 of 2010 pending the intended appeal

The Court of Appeal became functus officio upon delivery of its final judgment and lacks jurisdiction to grant a stay pending an intended appeal to the Supreme Court

p. 10

Costs

Dismissed in its entirety with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

certification is not available merely because a party is dissatisfied with the outcome of litigation or because constitutional provisions have been invoked.
p. 9Threshold for certification under Article 163(4)(b)
Certification under Article 163(4)(b) is not intended to provide litigants with a second bite at the cherry or a further opportunity or open ended licence to challenge factual and legal conclusions reached by this Court.
p. 10Certification not a second appeal on the merits
this Court became functus oficio upon delivery of its judgment in Civil Appeal No. 172 of 2010.
p. 10Functus officio bar to stay pending intended Supreme Court appeal
Consequently, the Notice of Motion dated 29th September 2016 is not merited and is accordingly dismissed in its entirety with costs to the respondents.
p. 11Final orders and disposition

Issues in the judgment

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minor

The judgment records respondents' further written submissions dated 18th February 2026, yet the application was heard in relation to submissions dated 1st September 2017; the judgment is dated 12th June 2026, but the date '18th February 2026' is unusually close to delivery and is stated as it appears.

minor

The judgment refers to 'Josvir Traders & Agencies Limited' in one passage while the applicant's affidavit refers to a transfer to 'Jovis Traders Limited', an apparent spelling inconsistency in the party/third-party name.

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, "Chege v Karanja & 4 others (Civil Application 5 of 2016) [2026] KECA 1100 (KLR)", Case Analysis (2026). Notice of Motion dated 29th September 2016 in Civil Appeal No. 172 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1100/eng@2026-06-12

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