Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. Sup. 14 of 2018

Eastlands Theatres Limited & 2 others v Kenya National Capital Corporation Limited [2020] KECA 547 (KLR)

Court of Appeal
10 July 2020
3,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to send Eastlands Theatres' contract dispute to the Supreme Court, ruling that private commercial fights don't automatically become matters of public importance.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Karanja, Warsame and Murgor, JJ.A) on a Notice of Motion dated 18th May 2018 in which Eastlands Theatres Limited and two individual applicants sought certification that their matter was of general public importance, so as to obtain leave to appeal to the Supreme Court under Article 163(4)(b) of the Constitution from the Court of Appeal's judgment of 20th April 2018 in Nairobi Civil Appeal No. 248 of 2018. The applicants argued that the courts below misinterpreted section 4(1) of the Limitation of Actions Act on when limitation begins to run on a guarantee, that bank charging and interest practices raised questions affecting the wider commercial community, and that their rights under Articles 25, 27, 40, 47, 50 and 159(2) were violated. The respondent, relying principally on the Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone criteria, contended the dispute was purely contractual and raised no general public importance. The Court applied the settled certification parameters, holding that nothing was novel about section 4(1) of the Limitation of Actions Act, that no conflicting precedents were demonstrated, that interest rates are purely contractual and vary within the banking sector, and that generalized unconscionability of a contract cannot be the subject of reference to the Supreme Court. The alleged constitutional violations had not been raised in the courts below but were dressed in constitutional regalia for the certification application. The Court dismissed the motion with costs to the respondent. The decision below was not disturbed, as the ruling concerns certification only.

Questions the Court framed

#

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

  1. 1.Whether the application passes the threshold required for certification that the matter is one of general public importance warranting an appeal to the Supreme Court under Article 163(4)(b) of the Constitution

Key legal issues

#
01

Whether the interpretation of section 4(1) of the Limitation of Actions Act regarding when time begins to run on a guarantee raises a matter of general public importance

Holding

It does not; the provision and its interpretation are not novel and no conflicting decisions were demonstrated

Reasoning

The Court found nothing novel about section 4(1) of the Limitation of Actions Act or the interpretation ascribed to it by the High Court and Court of Appeal. Beyond blanket submissions, the applicants failed to demonstrate that the question transcends the parties' interests or that contradictory precedents exist requiring Supreme Court resolution. Issues of standard forms and inequality of bargaining power in contracts are likewise not novel, and the terms of a contract bind only the parties to it.

p. 3
02

Whether bank interest rates and charging practices raise matters of general public importance

Holding

They do not; interest rates are purely contractual and vary within the banking sector

Reasoning

The Court held that interest rates charged by banks arise purely out of the commercial transaction between the parties and are not standard but vary across the banking sector, so the issue cannot be said to transcend the parties' interests. It aligned the case with Southern Shield Holding Limited v Delphis Bank Limited, where a private commercial loan dispute was held not to constitute a matter of general public importance absent concise demonstration of specific elements of public interest.

p. 3
03

Whether alleged violations of Articles 40, 47, 50 and 159(2) of the Constitution warrant certification

Holding

No; the constitutional issues were not raised in the courts below and were mere afterthoughts dressed in constitutional regalia

Reasoning

The Court noted that the alleged rights violations were not raised as constitutional issues in the two courts below but were donned with constitutional regalia solely to bring the matter within Article 163(4)(a). Applying Lawrence Nduttu v Kenya Breweries Limited and Njenga Livingstone v Joyce Wanjiku, an appeal to the Supreme Court must originate from a case where constitutional interpretation or application was actually in contest before the Court of Appeal. In any event, recourse on constitutional interpretation lies directly with the Supreme Court.

p. 4

Legal principles established

#
  • For a case to be certified as involving a matter of general public importance, the intending appellant must show that the issue transcends the circumstances of the particular case and has a significant bearing on the public interest; determination of facts in contest between parties is not, by itself, a basis for certification, and mere apprehension of miscarriage of justice is not a proper basis for granting certification
  • An intended appeal to the Supreme Court must originate from a matter in which issues of constitutional interpretation or application were actually canvassed and determined by the Court of Appeal; constitutional issues cannot be raised for the first time in a certification application

Court orders

#
  1. 1.Dismissal of the Notice of Motion dated 18th May 2018 seeking certification and leave to appeal to the Supreme Court
  2. 2.Costs of the application awarded to the respondent

The bench

#

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

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
Court of Appeal
Nairobi Civil Appeal No. 248 of 2018
Jurisdiction invoked
Article 163(4)(b) of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

#

Certification that the matter is of general public importance and leave to appeal to the Supreme Court

The matter falls short of the certification threshold; issues raised are contractual and particular to the parties, and constitutional questions were not raised in the courts below

p. 4

Costs

Notice of Motion 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.

It is trite law that in an appeal to the Supreme Court, the paramount consideration is not whether the decision of this Court is deemed to be right or wrong by any of the parties, but rather whether the intended appeal raises a matter of general public importance.
p. 2Paramount consideration on certification applications
A generalized purported unconscionableness of a contract cannot be the subject of reference to the Supreme Court.
p. 3Contractual unconscionability and certification
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court
p. 2Certification threshold - miscarriage of justice
Whichever way we look at this matter, it is evident that our unavoidable conclusion is that it falls short of the threshold required for certification of matters from this Court. Accordingly, we dismiss the Notice of Motion with costs to the respondent.
p. 4Final orders - dismissal of certification application

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eastlands Theatres Limited & 2 others v Kenya National Capital Corporation Limited [2020] KECA 547 (KLR)", Case Analysis (2020). Civil Application No. Sup. 14 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/547/eng@2020-07-10

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