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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication E026 of 2023

Everton Coal Enterprises Limited v Karanja & 5 others

Supreme Court of Kenya
10 November 2023
Mohammed Khadhar IbrahimM K IbrahimSmokin Charles WanjalaS C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI LenaolaWilliam OukoW Ouko
4,411 words in judgment
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·~18 min to read original · ~4 min brief

The bottom line

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Joining a case after judgment does not allow you to appeal to the Supreme Court.

What this practically means

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Patrick Karanja Ngugi was added as an interested party to a land dispute after the Court of Appeal had already made its decision. He then tried to appeal to the Supreme Court. The Supreme Court said no. It explained that you can only join a case while it is still being heard, not after it's finished. Also, the issues he wanted to raise had never been discussed in the lower courts. So he had no right to appeal. The Court also said his issues were not of general public importance, just an attempt to re-open the case.

Executive summary

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This was an application by Patrick Karanja Ngugi (the applicant) seeking extension of time, review of the Court of Appeal's refusal to grant certification, certification of the intended appeal as a matter of general public importance, and leave to appeal to the Supreme Court against the Court of Appeal judgment of July 29, 2016. The applicant was not a party to the original proceedings in the High Court or the Court of Appeal, but was joined as an interested party post-judgment in 2020. The Supreme Court, in a unanimous judgment delivered on November 10, 2023, dismissed the application in its entirety. The Court held that the applicant lacked locus standi because joinder post-judgment is not a valid joinder to proceedings that have already been finally disposed of. Citing rule 33(5) of the Supreme Court Rules and the decision in Francis Karioki Muruatetu & another v Republic & 5 others, the Court stated that applications for certification are limited to parties in the original cause. The Court further found that the issues the applicant sought to raise—such as the validity of Land Control Board consent, the application of section 46 of the Advocates Act, and the rights of a bona fide purchaser—were never pleaded, canvassed, or determined in the courts below. Applying the test from Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court concluded that the applicant had not demonstrated that the issues transcend the circumstances of the particular case or have a significant bearing on the public interest. The Court affirmed the Court of Appeal's decision of July 7, 2023, which had denied leave to appeal, and ordered the applicant to bear the costs of the application.

Questions the Court framed

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

  1. 1.Whether the applicant is competent to approach this court in the manner that it has done, or whether the court has jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal.

Key legal issues

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01

Whether the applicant, joined as an interested party post-judgment in the Court of Appeal, has locus standi to apply for certification to appeal to the Supreme Court.

Holding

The applicant lacks locus standi because joinder post-judgment is not a valid joinder to proceedings that have already been finally disposed of, and the applicant was not a party to the original cause.

Reasoning

The Supreme Court held that jurisdiction is everything and must be properly invoked. The Court examined rule 33(5) of the Supreme Court Rules, which limits applications for certification to parties in the original cause. The Court found that the applicant was joined four years after the Court of Appeal judgment, when no proceedings were pending. Citing JMK v MWM & another, the Court stated that joinder can only occur in pending proceedings. Since the applicant was not a party to the original dispute between the 1st-4th respondents and the 5th-6th respondents, and the issues it sought to raise were never pleaded or determined below, the applicant lacked locus standi and the Court lacked jurisdiction to entertain the application.

p. 9
02

Whether the issues raised by the applicant meet the threshold of general public importance under Article 163(4)(b) of the Constitution.

Holding

The issues do not meet the threshold because they were not determined by the courts below and do not transcend the circumstances of the particular case.

Reasoning

The Court applied the test from Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, which requires that a matter of general public importance must transcend the circumstances of the particular case and have a significant bearing on the public interest. The Court noted that the sole issue determined below was whether the 5th and 6th respondents legally acquired title to the suit property. The applicant's proposed issues—such as whether the applicant was an innocent purchaser for value or the proprietary rights of women—were never pleaded, canvassed, or determined in the High Court or Court of Appeal. The Court concluded that the application was a 'spirited attempt by the 5th and 6th respondents through the applicant to have a second bite at the cherry.'

p. 10

Legal principles established

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  • A party joined after judgment is not considered a party to the proceedings for Supreme Court appeals.
  • Joinder of parties is only allowed while the case is still pending, not after final judgment.
  • Only parties to the original case in lower courts can seek certification to appeal to the Supreme Court.
  • An interested party joined post-judgment cannot raise new issues that were not decided by the lower courts.
  • For an appeal on general public importance, the issues must have been raised and decided in the lower courts.
  • The Supreme Court will not allow post-judgment joinder to give a party a second chance at appeal.

Court orders

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  1. 1.The originating motion dated July 21, 2023 and filed on August 4, 2023 is hereby dismissed.
  2. 2.The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to this court is hereby affirmed.
  3. 3.The costs of this application shall be borne by the applicant.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal (Application) No 172 of 2010
Jurisdiction invoked
Article 163(4)(b) of the Constitution, sections 15, 15B(1)(b) and (2) of the Supreme Court Act, 2011 and rules 13, 33 and 36 of the Supreme Court Rules 2020

Relief refused

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Extension of time and leave to file a notice of appeal against the Court of Appeal judgment of July 29, 2016

The applicant lacks locus standi and the court lacks jurisdiction.

p. 10

Review of the Court of Appeal's refusal to grant certification

The applicant lacks locus standi and the court lacks jurisdiction.

p. 10

Certification of the intended appeal as a matter of general public importance

The applicant has not satisfied the court that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest.

p. 10

Leave to appeal against the Court of Appeal judgment of July 29, 2016

The applicant lacks locus standi and the court lacks jurisdiction.

p. 10

Costs

The costs of this application shall be borne by the applicant.

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.

Strictly speaking, though joined, the applicant was not a party to 'the proceedings' in the Court of Appeal having been joined post-judgment, yet a joinder contemplates a situation where proceedings are still pending before the court
p. 9 Locus standi and joinder post-judgment
we find that the applicant lacks the locus standi and is not competent to seek certification before this court. As a corollary, this court lacks the jurisdiction to determine this application for certification.
p. 10 Lack of jurisdiction
The originating motion dated July 21, 2023 and filed on August 4, 2023 is hereby dismissed.
p. 10 Final orders
The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to this court is hereby affirmed.
p. 10 Final orders
The costs of this application shall be borne by the applicant.
p. 10 Costs order

Key timeline

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2016-07-29
Court of Appeal delivers judgment in the land dispute.
2020
Patrick Karanja Ngugi is joined as an interested party after the judgment.
2023-07-07
Court of Appeal denies leave to appeal to the Supreme Court.
2023-08-04
Applicant files originating motion in the Supreme Court.
2023-11-10
Supreme Court dismisses the application and affirms the Court of Appeal decision.

Practical implications

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For lawyers

Strict locus standi for Supreme Court appeals

This case confirms that only parties to the original proceedings in the lower courts can seek certification to appeal to the Supreme Court. Lawyers must ensure clients are joined before judgment if they wish to preserve appeal rights. Post-judgment joinder is ineffective for this purpose. Also, any new issues not litigated below cannot be introduced at the certification stage.

For businesses

Join litigation early to preserve appeal rights

Businesses involved in or affected by litigation must seek to join the case before judgment is delivered. Joining after the case ends does not give you the right to appeal to the Supreme Court. If you have an interest, act promptly during the proceedings to ensure your voice is heard and your appeal options are protected.

For individuals

Act quickly if you have an interest in a case

If you believe a court case affects your rights, you must apply to join it while the case is still ongoing. Waiting until after the judgment to join will not allow you to appeal. The Supreme Court has made clear that post-judgment joinder does not give you standing to seek further appeals.

Frequently asked questions

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Can I join a court case in Kenya after the judgment has been delivered?+

No. The Supreme Court has ruled that joinder of parties is only possible while the case is still pending. Once a final judgment has been issued, the court cannot add new parties. If you have an interest, you must join before the case ends.

What is the process to appeal to the Supreme Court in Kenya?+

Appeals to the Supreme Court are limited. For civil cases, you need either an automatic right of appeal in certain constitutional matters or certification from the Court of Appeal that the case involves a matter of general public importance. Only parties to the original case can seek this certification.

What does 'general public importance' mean for Supreme Court appeals in Kenya?+

A matter of general public importance must transcend the particular case and have significant bearing on the public interest. The issues must have been raised and determined in the lower courts. The Supreme Court will not consider new issues introduced after judgment.

Why was Patrick Karanja Ngugi's appeal rejected by the Supreme Court?+

He was joined as an interested party after the Court of Appeal had already decided the case. The Supreme Court held that post-judgment joinder is invalid, so he had no standing to seek certification. Also, the issues he raised were never discussed in the lower courts.

Later judgments citing this (17)

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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, "Everton Coal Enterprises Limited v Karanja & 5 others", Case Analysis (2023). Application E026 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/98/eng@2023-11-10

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