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Court of AppealDismissedCivil Application No. 10 of 2016 (UR 2/2016)

Mtana Lewa v Kahindi Ngala Mwagandi [2016] KECA 544 (KLR)

Court of Appeal of Kenya
27 May 2016
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'Inoti
2,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled you don't need special permission to appeal constitutional issues to the Supreme Court—you can go automatically.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Makhandia, Ouko and M'Inoti, JJ.A.) on an application by Mtana Lewa for leave and certification to appeal to the Supreme Court against the Court of Appeal's judgment of 17th July 2015 in Civil Appeal No. 56 of 2014, which had upheld the dismissal by Angote, J. of a preliminary objection challenging the jurisdiction of the Environment and Land Court to entertain a claim for a declaration of adverse possession over the applicant's land, Tezo/Roka/371. The applicant contended that the invocation of adverse possession under Section 38 of the Limitation of Actions Act was inconsistent with Article 40 of the Constitution, and that this raised a matter of general public importance under Article 163(4)(b). The court, applying the certification criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the additional Awendo criterion, and the filter rationale in Peter Oduor Ngoge, declined to certify. It held that because the intended appeal turns on the interpretation or application of the Constitution, the applicant enjoys an automatic right of appeal under Article 163(4)(a) and need not seek leave, making certification superfluous. It further held that a dispute between private individuals over land does not, without more, constitute a matter of general public importance, and that the court's prior observations of national concern did not confer a passport to the Supreme Court. The application was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the intended appeal to the Supreme Court raises matters of general public importance warranting leave and certification under Article 163(4)(b) of the Constitution

Key legal issues

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Whether the constitutional validity of the doctrine of adverse possession vis-à-vis Article 40 of the Constitution is a matter of general public importance for certification under Article 163(4)(b)

Holding

No. Because the issue turns on the interpretation or application of the Constitution, it falls under Article 163(4)(a), conferring an automatic right of appeal without certification; in any event, a dispute between private individuals over land does not meet the general-public-importance threshold.

Reasoning

The court applied the Steyn criteria and the Awendo additional limb, reiterating that certification is a filter protecting the Supreme Court from unlimited appeals. The applicant's ground concerned the constitutionality of adverse possession under Section 38 of the Limitation of Actions Act against Article 40(2)(a), which is squarely constitutional interpretation. Such an appeal lies as of right, rendering leave superfluous. The private nature of the dispute and mere observations of national concern did not establish general public importance.

p. 4

Legal principles established

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  • Where an intended appeal involves the interpretation or application of the Constitution, a litigant has an automatic right of appeal to the Supreme Court under Article 163(4)(a) and need not seek leave or certification from the Court of Appeal.
  • Where a right and procedure is conferred by the Constitution or law, it should not be watered down by a party adopting a different procedure.
  • Disputes between private individuals over land, and mere observations of national concern in judgments, do not of themselves constitute matters of general public importance for certification purposes.

Court orders

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  1. 1.Leave and certification to appeal to the Supreme Court declined as superfluous
  2. 2.No order as to costs

The bench

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

AM
majority

Wrote the judgment

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

KM
majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya at Malindi
Civil Appeal No. 56 of 2014
Jurisdiction invoked
Article 163(4)(b) of the Constitution (certification of matters of general public importance), read with Sections 15 and 16 of the Supreme Court Act and Rule 24(1) and 31(2) of the Supreme Court Rules

Relief refused

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Leave to lodge an appeal in the Supreme Court against the judgment in Malindi Civil Appeal No. 56 of 2014

The issue raised is one of constitutional interpretation or application, so the applicant has an automatic right of appeal under Article 163(4)(a) and certification is unnecessary; nor was general public importance demonstrated

p. 4

Costs

We make no order as to costs.

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.

It is for this reason that we decline to grant leave and or certification, since in our view it is superfluous. We make no order as to costs.
p. 4Final orders - refusal of certification
the applicant has an automatic and unhindered right of appeal to the Supreme Court pursuant to Article 163 (4)(a) of the Constitution
p. 4Automatic right of appeal on constitutional questions
where a right and procedure has been conferred on a party by the Constitution or any other law, such right and procedure should not be watered down by a party who adopts a totally different procedure or route to secure that right.
p. 4Proper invocation of constitutional appeal routes
We appreciate that our decision is perhaps the only one so far in which the doctrine has been challenged on unconstitutional grounds. But does this fact alone render it a matter of general public importance? No.
p. 4Certification threshold - private disputes

Issues in the judgment

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minor

The judgment refers to the underlying appeal as heard and decided in 'separate judgments' by the same bench, though the ruling itself is a single judgment of the court.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Mtana Lewa v Kahindi Ngala Mwagandi [2016] KECA 544 (KLR)", Case Analysis (2016). Civil Application No. 10 of 2016 (UR 2/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/544/eng@2016-05-27

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