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Supreme CourtAllowedApplication 1 of 2013

Malcolm Bell v Daniel Toroitich Arap Moi & another

Supreme Court of Kenya
24 October 2013
Kalpana RawalKalpana RawalPhilip Kiptoo TunoiM.K. TunoiMohammed Khadhar IbrahimIbrahimJackton Boma OjwangJ.B. OjwangNjoki Susanna NdunguN.S. Ndungu
8,911 words in judgment
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The bottom line

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Supreme Court appeals require a matter of general public importance, not just a risk of miscarriage of justice.

What this practically means

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The Supreme Court ruled that it can only hear appeals on issues that affect the public broadly, not just individual cases. The Court of Appeal wrongly allowed an appeal based on a possible miscarriage of justice. The law that allowed that is unconstitutional. So the appeal was stopped.

Executive summary

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This was an application by Malcolm Bell (the applicant) seeking to review and overturn the certification granted by the Court of Appeal on 22nd February 2013, which had allowed the respondents (Hon. Daniel T. Moi and the Board of Governors, Moi High School Kabarak) to appeal to the Supreme Court. The underlying dispute concerned ownership of LR. No. 6207/2 in Kabarak, Nakuru, which the applicant inherited from his father Walter Bell. The respondents claimed the land was either a gift or had been acquired by adverse possession. The High Court had ruled in favour of the respondents on adverse possession, but the Court of Appeal reversed that decision, finding no gift or adverse possession. The Court of Appeal then granted certification for a further appeal to the Supreme Court on grounds of general public importance and possible miscarriage of justice. The Supreme Court considered whether the certification was proper. It held that section 16(2)(b) of the Supreme Court Act, which allows certification on grounds of 'substantial miscarriage of justice,' is inconsistent with Article 163(4)(b) of the Constitution, which limits certification to matters of general public importance. Applying the test from Hermanus Steyn, the Court found that the proposed appeal raised no matter of general public importance: the adverse possession issues were settled law, the conflicting Court of Appeal decisions could be resolved by that court itself, the format of the Court of Appeal judgment complied with the rules, and the legal capacity of the School did not create uncertainty warranting Supreme Court intervention. The Court allowed the application, overturned the certification, and ordered the respondents to bear costs. Deputy Chief Justice Rawal concurred but recommended an amendment to section 16 of the Supreme Court Act.

Questions the Court framed

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

  1. 1.certification for appeal before the Supreme Court: what are the respective roles of the Court of Appeal and the Supreme Court?
  2. 2.jurisdiction: is there a conflict between section 16(1) and (2)(b) of the Supreme Court Act, 2011 on the one hand, and Article 163(4) of the Constitution on the other?
  3. 3.does the proposed appeal to the Supreme Court raise a 'matter of general public importance?'
  4. 4.possibility of 'substantial miscarriage of justice': will this be a relevant factor as the Supreme Court considers the question of certification for appeal – as a matter of law and of fact?
  5. 5.what, really, was the 'property-relation' between the parties?
  6. 6.second respondent's legal capacity – what relevance? What significance? what was the position?
  7. 7.three-Judge Bench, two-Judge Bench, and format of Judgment – what significance, in law?

Key legal issues

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01

Whether section 16(1) and (2)(b) of the Supreme Court Act, 2011 is unconstitutional for purporting to extend the Supreme Court's jurisdiction beyond Article 163(4) of the Constitution.

Holding

Section 16(2)(b) of the Supreme Court Act, which allows certification on grounds of 'substantial miscarriage of justice', is inconsistent with Article 163(4)(b) of the Constitution, which limits certification to matters of general public importance. The Court upheld the applicant's objection that the intended appeal invoked a jurisdiction not coinciding with the Constitution's donation.

Reasoning

The Court reasoned that Article 163(4)(b) of the Constitution exclusively provides for appeals to the Supreme Court on certification of a matter of general public importance. Section 16(2)(b) of the Supreme Court Act introduces an additional ground—'substantial miscarriage of justice'—which is not provided for in the Constitution. Citing Samuel Kamau Macharia, the Court held that neither Parliament nor the Court itself can expand the Court's jurisdiction beyond constitutional limits. The Court found that the 'interest of justice' criterion in section 16(1) is already embedded in Article 10 of the Constitution and does not confer separate appellate jurisdiction.

p. 16
02

Whether the proposed appeal raises a 'matter of general public importance' warranting certification to the Supreme Court.

Holding

The proposed appeal does not raise a matter of general public importance. The Court of Appeal erred in granting certification. The issues raised—adverse possession, the legal status of the School, and the format of the Court of Appeal judgment—are either settled law or ordinary matters within the competence of the Court of Appeal.

Reasoning

The Court applied the test from Hermanus Steyn and found that the adverse possession question is a settled area of law that the Court of Appeal competently resolved. The conflicting Court of Appeal decisions on when time starts running for adverse possession are matters the Court of Appeal itself can resolve. The format of the Court of Appeal judgment (two judges, one concurring) complied with Rule 32 of the Court of Appeal Rules and raised no public importance issue. The legal capacity of the second respondent did not create uncertainty warranting Supreme Court intervention.

p. 18
03

Whether the Court of Appeal's judgment, written by two judges with one concurring, was procedurally proper and raises a matter of general public importance.

Holding

The judgment-delivery procedure was duly complied with under Rule 32(3) of the Court of Appeal Rules, 2010. The concurring opinion by Okwengu JA was proper and does not raise any matter of general public importance.

Reasoning

The Court noted that Rule 32(3) of the Court of Appeal Rules allows for separate concurring judgments where one judge is unable to perform functions due to infirmity or absence. Waki JA was on authorized leave abroad. The concurring opinion by Okwengu JA, indicating she had read and agreed with Koome JA's judgment, was within the regulatory scheme. The Court held that the point of law regarding the mode of rendering judgment is neither substantial nor would it have a significant bearing on the public interest.

p. 18

Legal principles established

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  • Supreme Court's appellate jurisdiction under Article 163(4)(b) is limited to matters of general public importance.
  • Mere apprehension of miscarriage of justice is not a proper basis for certification to the Supreme Court.
  • The Supreme Court cannot expand its jurisdiction through judicial craft or innovation; nor can Parliament confer jurisdiction beyond constitutional limits.
  • For a case to be certified as one of general public importance, the issue must transcend the particular case and have significant bearing on public interest.
  • Section 16(2)(b) of the Supreme Court Act (substantial miscarriage of justice) is inconsistent with the Constitution and invalid.
  • The Court of Appeal's judgment format (two judges, one concurring) complied with rules and does not raise a matter of public importance.

Court orders

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  1. 1.The application is allowed.
  2. 2.The certification for appeal granted by the Court of Appeal on 22nd February, 2013 is overturned.
  3. 3.The respondents shall bear the cost of the instant application.

The bench

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

Kalpana Rawal
concurring

Wrote the judgment

The Deputy Chief Justice concurred with the majority ruling but recommended that Parliament amend section 16 of the Supreme Court Act to remove the phrase 'interest of justice' as it restricts the Court's discretion.

I am in total agreement with the analysis and final determination in the majority Ruling, though I intend to make a few comments in aid of a clearer understanding of the appellate jurisdiction of the Court as prescribed under Article 163 (4) of the Constitution.p. 19
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nakuru
Nakuru Civil Appeal No. 129 of 2006
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010

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.

Consequently, we allow the application, and overturn the certification for appeal.
p. 19 Final orders
The respondents shall bear the cost of the instant application.
p. 19 Costs order
mere apprehension of miscarriage of justice, a matter most apt for resolution in [other] superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution
p. 12 Certification test
The [Supreme] Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.
p. 16 Jurisdiction limits
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. 12 General public importance test

Key timeline

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2013-02-22
Court of Appeal certifies appeal to Supreme Court
2013
Supreme Court overturns certification, holds appeal not of general public importance

Practical implications

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For lawyers

Limit appeals to public importance issues

When seeking certification to the Supreme Court, ensure the issue transcends the parties and affects the public. Mere risk of miscarriage of justice is insufficient. Challenge any certification based on Section 16(2)(b) as unconstitutional. Use the Hermanus Steyn test to demonstrate general public importance.

For businesses

Land disputes unlikely to reach Supreme Court

If you are involved in a land ownership dispute, note that the Supreme Court will only hear cases that affect many people or settle important legal questions. Ordinary adverse possession claims are not enough. Focus on resolving disputes at the Court of Appeal level.

For individuals

Your case must affect many people

If you want the Supreme Court to hear your appeal, you must show that your case raises a legal question that affects the public interest, not just your personal situation. A risk of an unfair outcome is not enough. The Court of Appeal's decision is usually final unless the issue is very important.

Frequently asked questions

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Can I appeal to the Supreme Court of Kenya if I think the Court of Appeal made a mistake?+

No, not automatically. The Supreme Court only hears appeals on matters of general public importance. A mere mistake or risk of injustice is not enough. You must first get certification from the Court of Appeal that your case raises a significant public interest issue.

What is a matter of general public importance in Kenya?+

It is a legal issue that goes beyond the parties in the case and affects the public at large. For example, a question about the interpretation of the Constitution or a law that many people rely on. The Supreme Court decides if the issue qualifies.

Is Section 16 of the Supreme Court Act unconstitutional in Kenya?+

The Supreme Court in Malcolm Bell v Moi ruled that Section 16(2)(b), which allowed appeals based on 'substantial miscarriage of justice', is inconsistent with the Constitution. Only the Constitution's Article 163(4)(b) (general public importance) governs Supreme Court appeals.

What happened in Malcolm Bell v Daniel Moi case in Kenya?+

The Supreme Court overturned the Court of Appeal's decision to allow an appeal to the Supreme Court. The case involved a land dispute. The Court held that the appeal did not raise a matter of general public importance, only a potential miscarriage of justice, which is not enough.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Malcolm Bell v Daniel Toroitich Arap Moi & another", Case Analysis (2013). Application 1 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/23/eng@2013-10-24

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