Paul Nakachi Ereng v Swisscom Logistics Limited
The bottom line
#The Court of Appeal refused to send a Nairobi land dispute to the Supreme Court, ruling the issues were private factual disputes, not matters of public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the first proposed issue (registration of title in favour of a company without verification of incorporation documents) raises a matter of general public importance
No. The issue rests on a factual contention disputed and resolved on evidence by the ELC and this Court; it invites re-examination of factual findings and discloses no substantial question of law.
The applicant's claim that the respondent's incorporation documents and CR-12 were never furnished to the Lands Registry was contested and resolved by both lower courts on the evidence. Framing the complaint as one concerning the statutory duties of Land Registrars does not convert a factual dispute into a question of general public importance, consistent with the Supreme Court's jurisprudence in Dhanjal Investments and Housing Finance.
Whether the second proposed issue (issuance of a grant without an I.R. number and subsequent affixation) qualifies for certification
No. The issue was neither pleaded nor determined before the ELC or the Court of Appeal and therefore cannot form the basis of certification.
The settled principle from Hermanus Phillipus Steyn and Malcolm Bell requires that the question sought to be certified must have arisen in, and been the subject of judicial determination by, the courts below. An issue introduced for the first time in a certification application, which did not form part of the proceedings culminating in the impugned judgment, cannot properly ground an appeal to the Supreme Court under Article 163(4)(b).
Whether the third proposed issue (abdication of constitutional obligations under Article 40 by Land Registrars) satisfies the threshold
No. The complaint ultimately stems from challenge to the validity of the respondent's title and the evaluation of evidence; the applicant demonstrated no uncertainty in the law nor conflicting jurisprudence, nor that the issue transcends this dispute.
Although couched in constitutional terms, the issue is in substance the applicant's challenge to the respondent's title and to the manner in which the courts below evaluated the registration evidence. Without demonstrated uncertainty in the law or conflicting decisions, and without proof that the question bears significantly on the public interest, it fails the Article 163(4)(b) threshold.
Whether the fourth proposed issue (whether procedural lapses in rectification necessarily invalidate the title rectified) qualifies for certification
No. The Court had already determined the rectification question by applying settled statutory provisions (section 79 of the Land Registration Act); what is sought is reconsideration of the application of settled principles to the facts.
The Court of Appeal had expressly found that the alteration of the title number from I.R. 52888 to I.R. 52887 was effected after the respondent became registered proprietor and without notice to or consent from the respondent, contrary to section 79 of the Land Registration Act. No uncertainty in the law or conflicting decisions was shown; the application seeks only re-application of settled law to facts.
Legal principles established
#- Mere formulation of issues as matters of general public importance is insufficient; the applicant must demonstrate with precision that the issues fall within the constitutional and jurisprudential meaning of a matter of general public importance.
- Evidentiary issues and factual disputes are specific to the parties and do not qualify as matters of general public importance under Article 163(4)(b).
- A question sought to be certified must have arisen in, and been determined by, the courts below; an issue that was not pleaded or determined in the proceedings cannot form the basis of certification.
Court orders
#- 1.The motion dated 22nd August 2024 seeking certification and leave to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2), 41(2), (3) and 49(1) & (4) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Nakachi Ereng v Swisscom Logistics Limited", Case Analysis (2026). Certification Application (motion dated 22nd August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1589/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.