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Supreme CourtDismissedCivil Application E048 of 2023

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

Supreme Court of Kenya
12 April 2024
2,189 words in judgment
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AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot review Court of Appeal's dismissal of certification application for being filed late.

What this practically means

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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

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The Supreme Court dismissed an originating motion seeking review of a Court of Appeal decision that had declined to certify an intended appeal as one of general public importance. The Court of Appeal had dismissed the application for certification as incompetent because it was filed out of time, and the applicants had not sought an extension of time. The Supreme Court held that it could not review such a procedural ruling, as it is a discretionary pronouncement appurtenant to the appellate court's mandate and therefore not appealable. The court also noted that even if it had considered the merits, the issues raised by the applicants did not meet the threshold of general public importance. The claim was a representative suit, not public interest litigation, and the issues regarding the setting apart of trust land and the burden of proof were already settled by precedent. The court distinguished the case of Funzi Development Limited v. County Council of Kwale, which the applicants had relied upon. The application was dismissed with costs to the 2nd and 6th Respondents.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal's refusal to certify the intended appeal as one of general public importance should be reviewed.
  2. 2.Whether the application for certification was properly dismissed by the Court of Appeal as being filed out of time.
  3. 3.Whether the issues raised by the applicant meet the threshold of general public importance.

Key legal issues

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01

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.

Holding

The Supreme Court cannot review such a decision because it is a discretionary procedural ruling that falls outside the scope of appealable decisions.

Reasoning

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.

02

Whether the issues raised by the applicant meet the threshold of general public importance for certification.

Holding

The issues raised do not meet the threshold because they are either private in nature, already settled by precedent, or were not properly pleaded.

Reasoning

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

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  • 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

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  1. 1.The Originating motion dated 1st December 2023 is hereby dismissed.
  2. 2.Costs of the application awarded to the 2nd and 6th Respondents.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
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

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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

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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.

With this finding by the Court of Appeal, this Court cannot move to review an application determined incompetent for want of procedure.
p. 4 Jurisdiction of the Supreme Court to review procedural rulings of the Court of Appeal
The Originating motion dated 1st December 2023 is hereby dismissed.
p. 5 Final orders of the court
Costs of the application awarded to the 2nd and 6th Respondents.
p. 5 Costs order
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
p. 4 Scope of appealable decisions from the Court of Appeal

Key timeline

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Before 2023
High Court proceedings on setting apart of trust land.
2023
Court of Appeal dismisses application for certification as incompetent for being filed out of time.
1 December 2023
Applicants file originating motion in Supreme Court seeking review.
2024
Supreme Court dismisses motion, affirming Court of Appeal decision.

Practical implications

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For lawyers

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.

For businesses

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.

For individuals

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

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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

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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.