Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] KECA 112 (KLR)
The bottom line
#The Court of Appeal refused to let Africa Merchant Assurance take its Kshs.71.5 million insurance dispute to the Supreme Court, finding no unsettled Kenyan law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application was competent, having regard to the time limits relied upon by the respondent
- 2.Whether the intended appeal is premised on the interpretation and/or application of the Constitution such that no certification is required
- 3.Whether the intended appeal involves matter(s) of general public importance warranting certification under Article 163(4)(b) of the Constitution
Key legal issues
#Time for filing an application for certification under Article 163(4)(b)
Rule 39 of the Court of Appeal Rules does not apply to certification applications; no statutory time limit exists, but the application must be made without unreasonable delay under Article 259(8) of the Constitution.
The Court held Rule 39 relates to applications for leave to lodge appeals to the Court of Appeal from superior courts, not applications for certification to appeal to the Supreme Court. The Supreme Court in Teachers Service Commission v Simon P. Kamau confirmed there is no time limit. However, Article 259(8) requires acts not done with unreasonable delay, assessed case by case. A filing roughly two months after judgment, attributable to a change of counsel, was held not inordinate.
Whether the intended appeal raised constitutional interpretation/application issues
Although the applicant challenged the Court's application of Article 159 of the Constitution, it also raised other issues of general public importance, so the application for certification was properly before the Court.
Relying on the Supreme Court's decision in Fahim Yasin Twaha v Timamy Issa Abdalla, the Court noted that the avenue chosen for an appeal rests on the character of the issues. Since the applicant raised both constitutional and general public importance issues, the correct course is to comply with the requirements of both Article 163(4)(a) and (b), and the applicant was rightly before the Court on the certification route.
Whether the intended appeal involved matters of general public importance
It did not. Although the insurer's capacity to sue in its own name under subrogation transcends the parties and is a substantial point of law of public interest, the applicant failed to show any uncertainty or lacuna in Kenyan law on the point.
Applying the Malcolm Bell criteria, the Court accepted the issue transcends the dispute, but held the burden was on the applicant to establish uncertainty arising from contradictory precedents. Foreign decisions (such as the South African Rand Mutual case) are merely persuasive and do not create the kind of uncertainty the criterion targets. Kenyan law was settled that an insurer cannot sue in its own name under subrogation, and the interpretation of the insurance clause did not go beyond the circumstances of the case.
Application of Article 159(2)(d) of the Constitution
The question whether Article 159(2)(d) could cure the insurer's lack of capacity does not fall for consideration given the Court's limited jurisdiction under Article 163(4).
The Court found this issue was not one it could entertain on an application for certification, as its jurisdiction is circumscribed by Article 163(4). The issue could not therefore form part of the intended appeal certified as raising a matter of general public importance.
Legal principles established
#- There is no prescribed time limit for an application for certification of a matter of general public importance, but such an application must be filed within a reasonable time in line with Article 259(8) of the Constitution.
- The 'uncertainty in the law' criterion for certification of general public importance refers to uncertainty created by conflicting decisions of Kenyan courts, not by divergent decisions of foreign jurisdictions.
- Where an intended appeal raises both constitutional interpretation/application issues and matters of general public importance, the intending appellant must comply with the requirements of both routes under Article 163(4).
- Under Rule 33(1) of the Supreme Court Rules, the 30-day period for lodging an appeal requiring certification begins to run only after the grant of certification.
Court orders
#- 1.Dismissal of the application for certification that the intended appeal involves matters of general public importance and for leave to appeal to the Supreme Court
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Malindi
- Civil Appeal No. 59 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification that a matter of general public importance is involved, for leave to appeal to the Supreme Court
Relief refused
#Certification that the intended appeal to the Supreme Court involves matter(s) of general public importance
The applicant failed to establish uncertainty or lacunae in the law on the insurer's capacity to sue in its own name under the doctrine of subrogation; the standard insurance clause issue did not transcend the circumstances of the case; the Article 159(2)(d) issue fell outside the Court's limited jurisdiction under Article 163(4)
Leave to appeal to the Supreme Court
Certification having been refused, leave could not be granted
Costs
The application was dismissed with costs (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 end, we find that the applicant has not made out a case to warrant the certification that the intended appeal to the Supreme Court involves matter(s) of general public importance or the leave to appeal to the Supreme Court.
Consequently, the application is devoid of merit and is hereby dismissed with costs.
In point of fact, there is no provision limiting the time frame within which an application for certification, such as in this case, should be filed.
The focus of the criterion in question, in our view, is uncertainty created by conflicting decisions of courts of this country.
we find that the delay was not inordinate.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] KECA 112 (KLR)", Case Analysis (2018). Civil Application No. 72 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/112/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.