Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2020] KECA 87 (KLR)
The bottom line
#The Court of Appeal refused to send this land dispute to the Supreme Court, confirming that private land fights rarely qualify as matters of general public importance.
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 intended appeal raises matters of general public importance warranting certification for appeal to the Supreme Court
- 2.Whether the impugned judgment created uncertainty in the interpretation and application of Section 39 of the Registered Land Act (repealed)
- 3.Whether the issue of limitation, raised for the first time on appeal, constitutes a matter of general public importance
- 4.Whether the Court's upholding of the 1st respondent's title in the absence of a cross-petition, and the annulment of the applicant's title without hearing Rhoda, raised matters of general public importance under Articles 23, 24, 40, 47 and 50 of the Constitution
- 5.Whether the twin principles for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules were satisfied
Key legal issues
#Whether the intended appeal raised matters of general public importance justifying certification to the Supreme Court
The application failed; the issues were mere contests of fact between the parties that did not transcend the particular case.
Applying the Malcom Bell criteria, the Court held that the applicant bore the burden of demonstrating a lacuna or uncertainty in the law regarding Section 39 of the RLA and did not discharge it. The questions raised were determinations of fact in contests between parties, lacked significant bearing on public interest, and included issues never judicially determined below. Certification is a filtering process and apprehension of error by the Court of Appeal is not a basis for it.
Scope of Section 39 of the Registered Land Act (repealed)
Section 39 protects only persons dealing directly with the registered proprietor; the applicant dealt with Patrick, who was not the proprietor, so the section did not assist him.
The Court endorsed Nyangilo Ochieng, holding that a purchaser relying on Section 39 must demonstrate that he dealt with the proprietor shown in the register. The sale agreement was between the applicant and Patrick, not Rhoda, and the Court had found anomalies in how Rhoda was registered. No contradiction with Pashito Holdings was established, so no uncertainty in law arose from the impugned judgment.
Whether the limitation issue, raised for the first time on appeal, warranted certification
It did not, because the issue never arose in nor was judicially determined by the courts below.
Although limitation is a jurisdictional question, the Supreme Court's criteria in Hermanus Steyn and Malcom Bell require that questions of law constituting matters of general public importance must have arisen in the courts below and been the subject of judicial determination. It was common ground that limitation was neither pleaded nor raised at trial, so it could not qualify.
Legal principles established
#- Section 39 of the Registered Land Act protects only a purchaser who dealt directly with the proprietor of the land as reflected in the register; a purchaser dealing with a non-proprietor cannot invoke its protection.
- A question of law that never arose and was never judicially determined in the courts below cannot constitute a matter of general public importance for certification to the Supreme Court.
- An issue concerning the interpretation and application of the Constitution falls under Article 163(4)(a) as an appeal as of right and does not fall within the Court of Appeal's jurisdiction to grant leave to appeal to the Supreme Court.
- The burden lies on the applicant seeking certification to demonstrate a lacuna or uncertainty in the law arising from contradictory precedents.
Court orders
#- 1.Dismissal of the application for certification of the intended appeal as one of general public importance and for leave to appeal to the Supreme Court
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Eldoret
- Civil Appeal 55 of 2018
- Jurisdiction invoked
- Article 163(4) of the Constitution; Section 19 of the Supreme Court Act; Rules 24 & 26 of the Supreme Court Rules; Rules 5(2) & 40 of the Court of Appeal Rules
Relief refused
#Certification of the intended appeal as a matter of general public importance and leave to appeal to the Supreme Court
The issues raised are no more than facts contested between the parties and do not transcend the circumstances of the case; no lacuna or uncertainty in law was demonstrated
Stay of execution of the decree arising from the High Court judgment pending the intended appeal
The application as a whole was dismissed, certification having failed; the applicant did not demonstrate the twin principles under Rule 5(2)(b) to the Court's satisfaction
Costs
The application is dismissed with costs to the respondents.
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 issues raised by the applicant in the intended appeal to the Supreme Court are no more than facts which were in contest between the parties and do not in any way transcend the circumstances of the case. As such, the applicant has not made out a case to warrant the certification sought hence the application is devoid of merit and is hereby dismissed with costs.
With respect Section 39 does not help her. That section assists all who deal directly with the proprietor of the land. Such a person is not obliged to find out how the proprietor obtained his title if he has a registered title.
issues raised by the applicant concerning interpretation and application of the Constitution do not fall within the ambit of our jurisdiction to grant leave to appeal to the Supreme Court
the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest
It is not in dispute that the issue of limitation was raised for the first time before this Court and was never considered by the trial court. For that reason, it cannot constitute a matter of general public importance.
Issues in the judgment
#The coram prints the second judge's surname as 'OKWENGU' while the signature block reads 'HANNAH OKWENGU'; the same judge is rendered inconsistently within the judgment.
The applicant's counsel attributed to Pashito Holdings a holding that purchasers need not ascertain how a proprietor was registered, but the excerpt of Pashito Holdings quoted in the judgment concerns joinder of the Commissioner of Lands and the audi alteram partem rule; the applicant's characterisation of that case is not supported by the quoted passage.
The 1st respondent's submissions describe the official search and green card as both showing Rhoda as proprietor while simultaneously describing them as contradicting each other, an internally confusing passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2020] KECA 87 (KLR)", Case Analysis (2020). Civil Application Sup. 131 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/87/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.