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Court of AppealDismissedCertification Application (motion dated 22nd August 2024)

Ereng v Swisscom Logistics Ltd (Civil Application E435 of 2024) [2026] KECA 1589 (KLR)

Court of Appeal of Kenya
31 July 2026
5,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kiage, Muchelule and Korir, JJ.A.) dismissing an application for certification and leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution. The underlying dispute concerns competing claims to L.R. Nos. 13815/2 and 13815/3 in Karen, Nairobi: the respondent claimed through an allotment to its director and registration, while the applicant claimed through a 1996 purchase from Col. Gabriel Peter Atambo. The Environment and Land Court declared the respondent the lawful proprietor and dismissed the applicant's counterclaim; the Court of Appeal (M'Inoti, Laibuta & Gachoka, JJ.A.) dismissed the applicant's appeal on 26th July 2024, applying Munyu Maina, Dina Management and Funzi Development on root of title. The applicant then sought certification, proposing four questions: verification of incorporation documents by Land Registrars; issuance of a grant without an I.R. number; alleged abdication of constitutional obligations by Land Registrars; and the effect of procedural lapses in rectification. The Court, applying Hermanus Phillipus Steyn, Malcolm Bell v Moi and Town Council of Awendo, held that the first, third and fourth issues rest on contested facts or the application of settled principles, and that the second was neither pleaded nor determined below. It reiterated that evidentiary matters and concurrent findings of fact are not matters of general public importance, that proposed issues must have arisen and been determined in the courts below, and that mere enumeration of issues does not satisfy the threshold. The motion was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution
  2. 2.Whether the four proposed issues (verification of incorporation documents by Land Registrars; issuance of a grant without an I.R. number; abdication of constitutional obligations by Land Registrars; effect of procedural lapses in rectification) satisfy the constitutional threshold for certification

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 9
02

Whether the second proposed issue (issuance of a grant without an I.R. number and subsequent affixation) qualifies for certification

Holding

No. The issue was neither pleaded nor determined before the ELC or the Court of Appeal and therefore cannot form the basis of certification.

Reasoning

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).

p. 9
03

Whether the third proposed issue (abdication of constitutional obligations under Article 40 by Land Registrars) satisfies the threshold

Holding

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.

Reasoning

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.

p. 9
04

Whether the fourth proposed issue (whether procedural lapses in rectification necessarily invalidate the title rectified) qualifies for certification

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The motion dated 22nd August 2024 seeking certification and leave to appeal to the Supreme Court is dismissed
  2. 2.Costs of the application awarded to the respondent

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; 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

Relief refused

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Certification under Article 163(4)(b) that the intended appeal raises matters of general public importance

The proposed issues are factual disputes, issues not arising or determined below, or questions governed by settled jurisprudence; they do not transcend the circumstances of the parties

p. 10

Leave to appeal to the Supreme Court against the judgment of the Court of Appeal delivered on 26th July 2024

Certification being refused, leave could not follow

p. 10

Costs

The motion dated 22nd August 2024 is dismissed with costs to the respondent

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.

Accordingly, we are not satisfied that the intended appeal raises any matter of general public importance warranting certification. The motion dated 22nd August 2024 is therefore dismissed with costs to the respondent. It is so ordered.
p. 10Final orders - dismissal of the certification application
In the final analysis, the proposed issues neither transcend the circumstances of the parties nor raise substantial questions of law bearing significantly on the public interest.
p. 10Failure to meet the Article 163(4)(b) threshold
Rather, they seek, directly or indirectly, a reconsideration of concurrent findings of fact made by the ELC and afirmed by this Court.
p. 10Concurrent findings of fact are not a basis for certification
For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
p. 7Governing test from Malcolm Bell v Moi, adopted by the Court
the requirement for certification by both the Court of Appeal and the Supreme Court is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.
p. 7Certification as a filtering process, from Hermanus Phillipus Steyn

Issues in the judgment

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minor

Paragraph numbering in the ruling is irregular: the sequence repeats (multiple paragraphs numbered '26.' consecutively) and is not strictly sequential, which may cause internal cross-referencing errors.

minor

The judgment cites Hermanus Phillipus Steyn with inconsistent years - [2012] eKLR when quoting the case and [2013] eKLR when applying it - and spells the applicant's name variously as 'Nakachi' and 'Nakachii'.

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, "Ereng v Swisscom Logistics Ltd (Civil Application E435 of 2024) [2026] KECA 1589 (KLR)", 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.