Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others
The bottom line
#Supreme Court cannot review Court of Appeal's dismissal of certification application for being filed late.
What this practically means
#The Supreme Court dismissed a request to review a Court of Appeal decision. The Court of Appeal had refused to certify an appeal as one of general public importance because it was filed too late. The Supreme Court said it cannot review such procedural decisions because they are discretionary and not appealable. Even if it could, the issues raised were private or already settled. The application was dismissed with costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal's refusal to certify the intended appeal as one of general public importance should be reviewed.
- 2.Whether the application for certification was properly dismissed by the Court of Appeal as being filed out of time.
- 3.Whether the issues raised by the applicant meet the threshold of general public importance.
Key legal issues
#Whether the Supreme Court can review a Court of Appeal decision that dismissed an application for certification as incompetent for being filed out of time.
The Supreme Court cannot review such a decision because it is a discretionary procedural ruling that falls outside the scope of appealable decisions.
The Court of Appeal found the application for certification was filed out of time and the applicants did not seek extension of time. The Supreme Court held that it cannot review an application determined incompetent for want of procedure, as such discretionary pronouncements are not appealable. The court cited its precedent in Daniel Kimani Njihia v Francis Mwangi Kimani to support this position.
Whether the issues raised by the applicant meet the threshold of general public importance for certification.
The issues raised do not meet the threshold because they are either private in nature, already settled by precedent, or were not properly pleaded.
The court noted that the claim was presented as a representative suit, not public interest litigation, and the Court of Appeal had admonished the applicant for seeking to introduce representation at the appellate stage. The court also found that the issues regarding the setting apart of trust land and the burden of proof under the Evidence Act are not novel and have been adequately addressed in previous decisions. The case of Funzi Development Limited was distinguished as it involved different facts.
Legal principles established
#- Not all Court of Appeal decisions are appealable to the Supreme Court; discretionary procedural rulings are excluded.
- A refusal to extend time or dismissal for being out of time is a discretionary pronouncement not subject to Supreme Court review.
- The Supreme Court cannot review an application determined incompetent for want of procedure.
- Issues of general public importance must be properly pleaded and cannot be introduced at the appellate stage.
- Issues already settled by precedent do not meet the threshold of general public importance.
- A representative suit does not automatically become public interest litigation.
Court orders
#- 1.The Originating motion dated 1st December 2023 is hereby dismissed.
- 2.Costs of the application awarded to the 2nd and 6th Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(b) and (5) of the Constitution; Sections 3A, 15, 15B and 21 of the Supreme Court Act, 2011; Rules 33(2) and (3) of the Supreme Court Rules, 2020
Relief refused
#Review of the Court of Appeal decision declining to grant certification of the intended appeal as a matter of general public importance
The Court of Appeal dismissed the application for certification upon the finding that it was filed out of time, and this Court cannot review an application determined incompetent for want of procedure.
Leave to appeal to the Supreme Court against the judgement of the Court of Appeal
The application was dismissed as the Court of Appeal had already found it incompetent for being filed out of time.
Costs
Costs of the application awarded to the 2nd and 6th Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
With this finding by the Court of Appeal, this Court cannot move to review an application determined incompetent for want of procedure.
The Originating motion dated 1st December 2023 is hereby dismissed.
Costs of the application awarded to the 2nd and 6th Respondents.
We have held in Daniel Kimani Njihia v Francis Mwangi Kimani & another SC. Appl. No. 3 of 2014 [2015] eKLR that not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this Court, is the discretionary pronouncements appurtenant to the appellate court's mandate
Key timeline
#Practical implications
#Limit on Supreme Court appeals
The Supreme Court has clarified that procedural rulings by the Court of Appeal, such as dismissal for late filing, are not appealable. Lawyers must ensure certification applications are filed on time or seek extension promptly. Do not rely on Supreme Court review for procedural defaults.
Land disputes remain procedural
Businesses involved in land disputes must adhere strictly to procedural timelines when seeking certification for appeal. The Supreme Court will not intervene if the Court of Appeal dismisses a late application. Ensure all filings are timely to avoid losing the right to appeal.
No second chance for late filings
Individuals cannot ask the Supreme Court to review a Court of Appeal decision that rejected their appeal certification because it was filed late. You must file on time or ask for an extension at the Court of Appeal. The Supreme Court will not fix procedural mistakes.
Frequently asked questions
#Can the Supreme Court of Kenya review a Court of Appeal decision that dismissed my case for being filed late?+
No. The Supreme Court held that such procedural rulings are discretionary and not appealable. You must address lateness at the Court of Appeal level.
What is the threshold for general public importance in Kenya?+
The issue must be novel, affect a large number of people, and not be already settled by precedent. Private disputes or representative suits do not qualify.
How do I appeal a Court of Appeal decision on certification in Kenya?+
You cannot appeal a refusal to certify if it was dismissed for procedural reasons like late filing. The Supreme Court will not review such decisions. Ensure timely filing.
What happened in Maina Njanga v County Government of Kwale?+
The Supreme Court dismissed an application to review a Court of Appeal decision that refused to certify an appeal as one of general public importance because it was filed late. The Court held it lacks jurisdiction over such procedural rulings.
Cite this brief
#Cite this brief
Caselaw, "Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others", Case Analysis (2024). Civil Application E048 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/14/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.