Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 15 of 2012

Koinange Investment & Development Ltd v Robert Nelson Ngethe [2013] KECA 380 (KLR)

Court of Appeal
8 March 2013
RNR. N. NambuyeWilliam OukoW. OukoJMJ. Mohammed
1,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to let a land dispute go to the Supreme Court, confirming only matters of genuine public importance reach the apex court.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Nambuye, Ouko & Mohammed, JJ.A) delivered on 8th March 2013 on an application by Koinange Investment & Development Ltd seeking a certificate, under Article 163(4)(b) of the Constitution, that a matter of general public importance was involved in its intended appeal to the Supreme Court against the dismissal of its appeal challenging the refusal to set aside a default judgment over land known as L.R 209/9099, Nairobi. The Court first disposed of a preliminary objection based on the application's use of the word 'leave' rather than 'certification', holding, in line with the Supreme Court's decision in Lawrence Nduttu and its own decision in Hermanus Phillipus Steyn, that the two expressions bear the same legal meaning, certification constituting leave. On the sole substantive question, the Court applied the test in Hermanus Phillipus Steyn that the importance of a matter must be public in nature and transcend the circumstances of the particular case, and observed that the party alleging public importance must formulate it in the application. The applicant had done neither: its claim was essentially a private sale contract, and both the High Court (Osiemo, J.) and the Court of Appeal had made concurrent findings that there was sufficient evidence of service of the hearing notice. The Court also emphasised that the Supreme Court, as apex court and court of last resort, must not be invoked in a routine fashion and was never intended to be a regular court of appeal. The application was dismissed with costs to the respondent.

Questions the Court framed

#

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

  1. 1.Whether the terms 'leave' and 'certification' bear the same legal meaning under Article 163(4)(b) of the Constitution
  2. 2.Whether the intended appeal to the Supreme Court raises a matter of general public importance warranting certification

Key legal issues

#
01

Equivalence of 'leave' and 'certification' under Article 163(4)(b)

Holding

The objection that the application used 'leave' rather than 'certifies' was rejected; the two terms bear the same legal meaning.

Reasoning

Although Article 163(4)(b) uses 'certified', Rule 22 of the revoked Supreme Court Rules 2011 referred to 'leave' while new Rule 24 refers to 'certification'. Relying on the Supreme Court's decision in Lawrence Nduttu and this Court's decision in Hermanus Phillipus Steyn, the Court held that certification by the court constitutes leave, disposing of counsel's preliminary objection.

p. 2
02

Whether the intended appeal raises a matter of general public importance

Holding

It does not; the dispute is a private sale-contract matter with concurrent findings of fact on service, and the applicant did not frame any matter of general public importance.

Reasoning

Applying Hermanus Phillipus Steyn and foreign authority, the Court held that importance must be public in nature and transcend the particular case. The applicant's claim was a sale contract and the ex parte judgment issue did not transcend the case. Both Osiemo, J. and the Court of Appeal had made concurrent findings that there was sufficient evidence of service, and the applicant had failed to frame the matter of public importance in its application.

p. 3

Legal principles established

#
  • The words 'leave of the court' and 'certification by the court' under Article 163(4)(b) bear the same legal meaning; certification constitutes leave.
  • A party seeking certification under Article 163(4)(b) must demonstrate general public importance by identifying and formulating the matter of public importance in the application.
  • The importance of a matter must be public in nature and transcend the circumstances of the particular case; a difficult question of law is not enough - it must be an important question of law whose clarification serves the common good.
  • The Supreme Court is a court of last resort and its jurisdiction must not be invoked routinely; it was never intended to be a regular court of appeal against orders of the Court of Appeal.

Court orders

#
  1. 1.Certification that a matter of general public importance is involved in the intended appeal is declined
  2. 2.The application is dismissed with costs to the respondent

The bench

#

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

RN
majority
William Ouko
W. OukoJA
Currently serving
majority
JM
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 108 of 2003 (judgment dated 23rd March, 2012; application heading inconsistently cites Civil Appeal No. 108 of 2012)
Jurisdiction invoked
Article 163(4)(b) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; Rule 30 of the Supreme Court Rules

Relief refused

#

Certificate/leave for appeal to the Supreme Court under Article 163(4)(b)

The intended appeal, being essentially a private sale-contract dispute with concurrent findings on service, does not raise a matter of general public importance; the Supreme Court is not a regular court of appeal

p. 3

Costs

The application is dismissed with costs to the respondent.

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.

In the result, we decline to grant a certificate and dismiss the application with costs to the respondent.
p. 3Final orders - certification refused
the intended appeal to the Supreme Court does not raise a matter of public importance.
p. 3General public importance test
the jurisdiction of the Supreme Court being the apex court, a court of last resort, must not be invoked in a routine fashion. It was never intended to be a regular court of appeal against all and sundry orders passed by this Court.
p. 3Nature of Supreme Court jurisdiction
the party alleging that the appeal raises a matter of general public importance must demonstrate the existence of that importance by identifying and formulating in the application the matter of public importance relied upon
p. 3Burden on applicant for certification

Issues in the judgment

#
minor

The coram/bench listing (R. N. Nambuye, W. Ouko, J. Mohammed) differs from the judges named in the recital of the underlying Court of Appeal judgment (Bosire, Karanja & Okwengu, JJ.A); the latter delivered the judgment under appeal, not this ruling.

minor

The application heading cites 'Civil Appeal No. 108 of 2012' while the body refers to the applicant's appeal as 'Civil Appeal No. 108 of 2003'.

minor

R v Ashdown is cited with two conflicting years/citations in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Koinange Investment & Development Ltd v Robert Nelson Ngethe [2013] KECA 380 (KLR)", Case Analysis (2013). Civil Application No. 15 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/380/eng@2013-03-08

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