TMG & another v AP
The bottom line
#Supreme Court blocks appeal over property dispute, citing no general public importance.
What this practically means
#The Supreme Court dismissed a request to appeal a property case in Shanzu. The applicants claimed an interest in land based on an alleged marriage-like relationship, but the High Court and Court of Appeal found no valid marriage existed. The Supreme Court ruled the issues were too specific to the case, not matters of general public importance, and procedural rules were not followed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issues set out in the applicants' written submissions constitute issues of general public importance warranting certification under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the issues raised by the applicants in their written submissions constitute issues of general public importance under Article 163(4)(b) of the Constitution.
The issues raised do not constitute matters of general public importance because they are anchored on the peculiar facts of the case and seek to secure an interpretation of the law in that context, which is beyond the Supreme Court's appellate jurisdiction under Article 163(4)(b).
The court noted that the applicants failed to demonstrate any lacuna or inconsistency in the law regarding what constitutes a valid marriage, as the Marriage Act is clear. The claim that the suit property was matrimonial property failed because no marriage could be presumed between the parties. Issues of constitutional violations were never raised in the lower courts and could not be introduced at the certification stage. The intended appeal sought to secure an interpretation of the law in the context of the peculiar facts of this case, which does not transcend the dispute between the parties.
Whether the applicants properly delineated the issues of general public importance in their motion for certification.
The applicants did not properly delineate the issues in their motion; they only set them out in written submissions, which is insufficient for proper order and notice to other parties.
The court emphasized that the delineated issues form the basis upon which both the Court of Appeal and the Supreme Court determine whether an intended appeal raises issues of general public importance. The applicants failed to concisely set out the issues in their motion, which is a procedural requirement.
Legal principles established
#- An intended appellant must clearly state the issues of general public importance in the motion itself, not just in written submissions.
- New issues cannot be raised for the first time in a review motion before the Supreme Court if they were not in the original certification request.
- An appeal must raise legal questions that go beyond the specific facts of the case to qualify as a matter of general public importance.
- The Supreme Court will not hear appeals that seek to reinterpret clear laws, like the Marriage Act, based on unique circumstances.
- Each party bears its own costs in certification motions unless special circumstances justify a different order.
Court orders
#- 1.The originating motion dated March 8, 2024 and filed on April 26, 2024 is hereby dismissed.
- 2.Each party shall bear his/her own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Mombasa Civil Applic No E003 of 2022
- Jurisdiction invoked
- Article 163(5) of the Constitution and rule 33(2) of the Supreme Court Rules
Relief refused
#Certification that the intended appeal raises issues of general public importance
The motion fell short of demonstrating that the intended appeal raises issues of general public importance; the intended appeal seeks to secure an interpretation of the law in the context of the peculiar facts of this case, which is beyond this court's appellate jurisdiction under article 163(4)(b) of the Constitution.
Costs
Each party shall bear his/her own costs.
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.
Therefore, we find that for proper order and notice to the other parties, an intended appellant, like the applicants, should concisely delineate the issue(s) of general public importance he/she deems arises from an impugned decision of the Court of Appeal not only in a motion seeking certification but also in the instant motion seeking review of the decision of the Court of Appeal declining such certification.
It is apparent that the intended appeal seeks to secure an interpretation of the law in the context of the peculiar facts of this case, which is beyond this court's appellate jurisdiction under article 163(4)(b) of the Constitution.
The originating motion dated March 8, 2024 and filed on April 26, 2024 is hereby dismissed.
Each party shall bear his/her own costs.
Key timeline
#Practical implications
#Draft motions with precision
When seeking certification for an appeal to the Supreme Court, ensure the motion itself concisely lists the issues of general public importance. Relying solely on written submissions is insufficient and risks dismissal. Also, avoid introducing new arguments at the review stage that were not raised in the original certification request.
Property claims need clear legal basis
If your business holds property in Kenya, ensure all ownership claims are backed by clear legal documents, such as title deeds or valid marriage certificates. Claims based on informal relationships or equitable interests may fail in court, especially if the law is already clear. This case shows courts will not reopen settled facts.
Know your marriage rights
If you are in a relationship and claim property rights, understand that Kenyan law requires a valid marriage to assert matrimonial property claims. Cohabitation alone, especially if one party is already married, does not create a legal marriage. Seek legal advice before relying on informal arrangements to protect your interests.
Frequently asked questions
#What is a certification appeal in Kenya?+
A certification appeal is a request to the Supreme Court to hear a case that raises issues of general public importance. The Court of Appeal must first certify the case, or the Supreme Court can review a refusal. This case shows the Supreme Court will reject appeals that only involve specific facts, not broad legal questions.
Can I claim property in Kenya based on a marriage-like relationship?+
Only if you have a valid marriage under Kenyan law. In this case, the court found no marriage existed because one party was already married to someone else. Without a legal marriage, you cannot claim matrimonial property. The law is clear, and courts will not reinterpret it for individual cases.
What happens if I miss procedural steps in a Kenyan appeal?+
You risk having your appeal dismissed. In this case, the applicants failed to list the issues of general public importance in their motion, only in written submissions. The Supreme Court said this was insufficient for proper notice to other parties. Always follow court rules precisely to avoid losing your case.
Can I raise new constitutional issues in a Kenyan Supreme Court appeal?+
No, you cannot raise new issues for the first time at the certification stage. The Supreme Court in this case rejected constitutional arguments because they were not raised in the lower courts. You must present all legal issues early in the case to preserve them for appeal.
Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Burrough & another v Mungania & another (Civil Appeal E079 & E128 of 2023 (Consolidated)) [2026] KECA 898 (KLR)[2026] KECA 898 (KLR)15 May 2026applied
- Kibui v Njoroge & 3 others (Civil Appeal 184 of 2020) [2026] KECA 664 (KLR)[2026] KECA 664 (KLR)25 Mar 2026followed
- Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR)[2025] KEELC 7285 (KLR)16 Oct 2025applied
- Mangira & another v Asset Recovery Agency; Ali Cars Limited (Affected Party) (Civil Appeal (Application) E132 of 2023) [2025] KECA 910 (KLR)[2025] KECA 910 (KLR)23 May 2025applied
- Okeno & 2 others v Yhap (Civil Application E118 of 2024) [2025] KECA 805 (KLR)[2025] KECA 805 (KLR)9 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "TMG & another v AP", Case Analysis (2024). Application E012 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/48/eng@2024-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.