Bifwoli v Attorney General & 2 others (Environment & Land Petition 29 of 2017) [2022] KEELC 3421 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to send a land dispute to a larger bench because it raised no substantial constitutional question.
What this practically means
#Executive summary
#Key legal issues
#Whether the application raised a substantial question of law under Article 165(4) of the Constitution
It did not; the application is a simple application for review of the judgment on costs raising only a question of interpretation of the law decidable by one judge
The court reviewed Article 165 and held that certification requires the matter to concern denial, violation, infringement or threat of a right or fundamental freedom, or interpretation of the Constitution, AND that the question must be substantial. Applying Harrison Kinyanjui, Chunilal V Mehta and Santosh Hazari, a substantial question must be debatable, not previously settled, and materially affect the parties' rights. The applicant's questions about recall of a costs order and inherent power to set aside judgments are settled or decidable by a single judge.
Whether Article 165(4) applies to courts of equal status such as the Environment and Land Court
Yes; Article 165(4) is the only constitutional provision expressly permitting constitution of a bench of more than one Environment and Land Court judge
The court held that although Article 165 establishes the High Court, the provision can be applied by courts of equal status, namely the Environment and Land Court and the Employment and Labour Relations Court. Certification must nonetheless still be grounded on clause (3)(b) or (d) matters and a substantial question of law.
Whether the pendency of an appeal bars an application for review of the costs order
The 3rd respondent argued that once an appeal is lodged review cannot be entertained under Order 43 of the Civil Procedure Rules, but the court disposed of the matter on the absence of a substantial question of law without deciding this point definitively
The respondent contended the court lacked jurisdiction to review because the applicant had already lodged an appeal against the May 2, 2018 judgment. The court instead framed the application as one for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and dismissed it for failure to raise a substantial question of law warranting certification.
Legal principles established
#- A matter may only be referred to the Chief Justice for empanelment of a bench of not less than three judges where the court certifies that it raises a substantial question of law under Article 165(3)(b) or (d) of the Constitution
- The decision of a three-judge bench is of equal precedential force to that of a single judge exercising the same jurisdiction
- Parties' opinion that a matter falls under Article 165(4) does not bind the court in issuing certification; the court must independently satisfy itself that a substantial question of law is raised
Court orders
#- 1.The application dated March 22, 2022 seeking certification of the matter as raising a substantial question of law under Article 165(4) of the Constitution is dismissed
- Jurisdiction invoked
- Article 165(4) of the Constitution of Kenya 2010; sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bifwoli v Attorney General & 2 others (Environment & Land Petition 29 of 2017) [2022] KEELC 3421 (KLR)", Case Analysis (2022). Kisumu ELC Petition No 29 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3421/eng@2022-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.