Eastlands Theatres Limited & 2 others v Kenya National Capital Corporation Limited [2020] KECA 547 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#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
It does not; the provision and its interpretation are not novel and no conflicting decisions were demonstrated
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.
Whether bank interest rates and charging practices raise matters of general public importance
They do not; interest rates are purely contractual and vary within the banking sector
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.
Whether alleged violations of Articles 40, 47, 50 and 159(2) of the Constitution warrant certification
No; the constitutional issues were not raised in the courts below and were mere afterthoughts dressed in constitutional regalia
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.
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.Dismissal of the Notice of Motion dated 18th May 2018 seeking certification and 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
- 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
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.
A generalized purported unconscionableness of a contract cannot be the subject of reference to the Supreme Court.
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
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.
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.