George Kihara Mbiyu v Margaret Njeri Mbiyu & 15 others
The bottom line
#Supreme Court can review Court of Appeal certification decisions, but this succession case didn't qualify.
What this practically means
#The Supreme Court confirmed it has the power to review a Court of Appeal decision that refuses to certify a case as one of general public importance. However, in this family succession dispute over Peter Mbiyu Koinange's estate, the Court found the issues were specific to the family and did not raise broad public interest. The application was dismissed, and each party pays its own costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction under Article 163(5) to review the Court of Appeal's refusal to grant certification under Article 163(4).
- 2.Whether the issues raised by the applicant in the intended appeal meet the criteria for certification as matters of general public importance.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(5) to review the Court of Appeal's refusal to grant certification under Article 163(4).
The Supreme Court has jurisdiction to review such a decision; denying review would be discriminatory and contrary to Articles 27 and 50(1) of the Constitution.
The Court distinguished between the concurrent jurisdiction of the Court of Appeal and Supreme Court to grant certification under Article 163(4) and the separate review jurisdiction under Article 163(5). It held that once a party chooses a forum, they cannot file the same application in the other court, but Article 163(5) provides a distinct right of review. Denying an aggrieved party this review would violate the right to fair hearing and equality.
Whether the Court of Appeal erred in applying the doctrine of estoppel under Section 120 of the Evidence Act based on affidavit evidence to establish the status of widows.
The Court of Appeal correctly applied the doctrine of estoppel; the affidavit evidence related to events preceding the deceased's death, not after.
The applicant argued that the Court of Appeal relied on untested affidavit evidence from interlocutory proceedings to override viva voce evidence. The Supreme Court found that while the affidavits were sworn after the deceased's death, their contents regarding the widows' status related to events before his death. Therefore, the application of estoppel was proper and did not disturb settled principles of evidence.
Whether the Court of Appeal erred in applying the doctrine of res judicata to interlocutory proceedings.
The doctrine of res judicata applies to decisions on applications as it does to final decisions.
The Court cited Kanorero River Farm & Others v. National Bank of Kenya Ltd to affirm that res judicata is not limited to final judgments but also applies to interlocutory orders. The Court further noted that the Court of Appeal's conclusions were based on the unique facts of the case and would not affect other cases.
Legal principles established
#- Supreme Court can review Court of Appeal decisions on certification under Article 163(5).
- Denying review of a certification refusal would violate fair hearing and equality rights.
- To get certification, the issue must go beyond the specific case and affect public interest.
- Res judicata applies to interlocutory decisions, not just final judgments.
- Estoppel can be based on affidavit evidence if it relates to events before the person died.
Court orders
#- 1.The application for review of the Court of Appeal's decision declining certification is dismissed.
- 2.The interim order of stay issued by a single Judge of this Court has lapsed.
- 3.Each party to bear its own costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Nairobi Civil Application No. NAI SUP. 12 of 2017
- Jurisdiction invoked
- Article 163(4)(b) and (5) of the Constitution; Sections 15(1) and 19 of the Supreme Court Act No. 7 of 2011; Rules 24(i) and 31 of the Supreme Court Rules, 2011
Relief refused
#Review of the Court of Appeal's decision declining certification and substitution with an order granting leave to appeal.
The Court found no merit in the applicant's contention that the Court of Appeal erred in its application of the doctrines of estoppel and res judicata, and concluded that the issues raised did not involve matters of general public importance.
Stay of proceedings in Nairobi Succession Cause No. 527 of 1981 pending hearing and determination of the application.
The stay order was interim pending determination of the application; having determined the application, the stay lapsed.
Costs
each party to bear its own costs of this application
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.
Article 163(5) of the Constitution vests the Supreme Court with jurisdiction to review the Court of Appeal's decision granting or declining certification that a matter is one of general public importance.
To deny a party aggrieved by a refusal to grant certification that a matter is one of general public importance is discriminatory and contrary to Article 27 and a denial of the right to a fair hearing under Article 50(1) of the Constitution.
the doctrine of res judicata applies equally to decisions on applications as it does to final decisions on a matter.
Consequently, we dismiss this application.
And this being a family dispute, we order that each party bears its own costs of this application.
Key timeline
#Practical implications
#Review path for certification denials
When the Court of Appeal refuses certification under Article 163(4)(b), you can now apply to the Supreme Court for review under Article 163(5). But ensure your client's issue truly transcends the individual case—mere allegations of injustice won't suffice. Also, res judicata blocks re-litigating even interlocutory orders, so frame arguments carefully early on.
Succession disputes stay family-specific
If you're involved in a family business succession, this case shows courts will treat estate disputes as private family matters unless they raise broad public interest. To avoid prolonged litigation, consider mediation or family settlements early. The Supreme Court's cost order (each party bears own costs) also signals that family disputes may not attract punitive costs.
Affidavit evidence can bind you
If you swear an affidavit in a succession case, its contents about events before the deceased's death can be used against you later—even if the affidavit was sworn after death. The court applied estoppel here, meaning you cannot later contradict what you swore. Be truthful and precise in any sworn statement to avoid being locked into a position.
Frequently asked questions
#Can I appeal to the Supreme Court if the Court of Appeal refuses certification in Kenya?+
Yes, the Supreme Court can review that refusal under Article 163(5) of the Constitution. But you must show the issue is of general public importance—not just a personal grievance. This case confirms that right exists.
What is res judicata in Kenyan succession cases?+
Res judicata means you cannot re-litigate a matter that has already been decided by a court. In this case, the Supreme Court said it applies even to interim applications, not just final judgments. So if a court ruled on a point earlier, you cannot raise it again.
Does estoppel apply to affidavit evidence in Kenya?+
Yes, if the affidavit's contents relate to events before a person's death, the court can use estoppel to stop you from contradicting those statements later. This case involved widows' status, and the court held the affidavits were binding even though sworn after death.
What makes a case one of general public importance in Kenya?+
The issue must go beyond the specific parties and affect the public interest significantly. For example, a legal question that could impact many people or clarify the law. A mere fear of injustice in your own case is not enough.
Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Said (Suing as the administrator of the Estate of Tahir Sheikh Said Ahmed - Deceased) v KCB Bank Kenya Limited (Civil Appeal E045 of 2022) [2025] KECA 2106 (KLR)[2025] KECA 2106 (KLR)5 Dec 2025
- Thiani v Kedong Ranch Limited & 6 others (Environment and Land Case E006 of 2025) (Environment and Land) [2025] KEELC 5133 (KLR)[2025] KEELC 5133 (KLR)10 Jul 2025
- Ethics & Anti-Corruption Commission v Gikonyo & 3 others (Civil Appeal 454 of 2018) [2023] KECA 456 (KLR)[2023] KECA 456 (KLR)20 Apr 2023
- Michael Gatuma & 19 others v Victor Karithi Mutuma & another [2022] KEELC 641 (KLR)[2022] KEELC 641 (KLR)23 Mar 2022followed
- Joseph Kimeto Ole Mapelu & 12 others v Cabinet Secretary, Ministry of Lands, Housing And Urban Development & 10 others [2020] KEELC 3938 (KLR)[2020] KEELC 3938 (KLR)21 Jan 2020followed
- Banking, Insurance and Finance Union (Kenya) v Bank of Baroda (K) Limited [2019] KEELRC 1087 (KLR)[2019] KEELRC 1087 (KLR)10 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "George Kihara Mbiyu v Margaret Njeri Mbiyu & 15 others", Case Analysis (2018). Civil Application 10 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/29/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.