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Court of AppealDismissedCivil Application No. 68 of 2016

Paul Khakina Musungu v Joseph Chebayi Chesoli & another [2017] KECA 9 (KLR)

Court of Appeal
25 May 2017
1,156 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let an adverse possession dispute reach the Supreme Court, confirming that private land fights rarely qualify as matters of general public importance.

What this practically means

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Executive summary

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This was a ruling of the Court of Appeal at Eldoret (Musinga, Gatembu Kairu and Murgor, JJ.A) on the applicant's Notice of Motion seeking leave, under Article 163(4)(b) of the Constitution, Sections 1 and 2 of the Supreme Court Act and Rule 24(1) of the Supreme Court Rules, 2012, to appeal to the Supreme Court against the Court of Appeal's judgment of 29th July 2016 in Eldoret Civil Appeal No. 58 of 2013. That judgment had reversed a High Court decision of 20th December 2013 which had granted the applicant title to land (Ndivisi/Ndivisi/64) under the doctrine of adverse possession. The applicant argued that the Court of Appeal's ruling on when time begins to run for adverse possession conflicted with Public Trustee vs. Wanduru [1984] KLR 314 and thus raised a matter of general public importance requiring resolution by the Supreme Court. The respondents opposed, contending the dispute was private and did not transcend the parties' interests. Applying the certification principles in Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone, the court held that the issue must transcend the particular case, bear significantly on the public interest, and rest on a substantial point of law already determined in the courts below. Relying on the Supreme Court's decision in Malcolm Bell vs. Daniel Toroitich Arap Moi, the court held that the timing question in adverse possession claims does not constitute a matter of general public importance. The application was dismissed with costs to the respondents.

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 has demonstrated that the intended appeal to the Supreme Court raises a matter of general public importance warranting certification

Key legal issues

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Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not; the applicant failed to identify elements of general public importance beyond the factual dispute over adverse possession, and the Supreme Court has already determined that the timing question in adverse possession claims is not such a matter.

Reasoning

The court applied the certification principles in Hermanus Phillipus Steyn: the issue must transcend the parties' case, bear on the public interest, and any point of law must be substantial and have arisen and been determined in the courts below. The applicant's claim of conflict with Public Trustee vs. Wanduru was foreclosed by Malcolm Bell vs. Daniel Toroitich Arap Moi, where the Supreme Court held that resolving when time begins to run in adverse possession is a matter of reviewing factual scenarios and past decisions, within the Court of Appeal's competence, not a matter of general public importance.

p. 2

Legal principles established

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  • Certification for appeal to the Supreme Court requires that the issue transcend the circumstances of the particular case and have a significant bearing on the public interest; contested findings of fact and mere apprehension of miscarriage of justice are not a basis for leave.
  • A substantial point of law must have arisen in the courts below and have been the subject of judicial determination before it can found certification.
  • The question of when time begins to run in a claim for adverse possession does not, per the Supreme Court's decision in Malcolm Bell, constitute a matter of general public importance; the Court of Appeal is the appropriate forum to settle that question.

Court orders

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  1. 1.The applicant's Notice of Motion dated 23rd August 2016 seeking leave to appeal to the Supreme Court is dismissed with costs to the respondents

The bench

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

majority
majority
majority
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010; Sections 1 and 2 of the Supreme Court Act; Rule 24(1) of the Supreme Court Rules, 2012

Relief refused

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Leave to appeal to the Supreme Court against the judgment of the Court of Appeal dated 29th July 2016 in Eldoret Civil Appeal No. 58 of 2013

The intended appeal does not raise a matter of general public importance; the Supreme Court in Malcolm Bell has already held that the question of when time begins to run in adverse possession claims does not meet that profile

p. 2

Costs

The application is dismissed with costs to the respondents.

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.

The mere apprehension of miscarriage of justice is not a proper basis for granting certification.
p. 2certification - miscarriage of justice
determinations of fact that are in contest between parties are not by themselves a basis for granting leave to appeal to the Supreme Court.
p. 2certification - factual disputes
The result is that the applicant’s application dated 23 rd August 2016 fails and it is hereby dismissed with costs to the respondents.
p. 2final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Khakina Musungu v Joseph Chebayi Chesoli & another [2017] KECA 9 (KLR)", Case Analysis (2017). Civil Application No. 68 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/9/eng@2017-05-25

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