Westmont Holdings Sdn.BHD v Central Bank of Kenya [2021] KECA 393 (KLR)
The bottom line
#The Court of Appeal refused Westmont permission to take its dispute with Central Bank of Kenya to the Supreme Court, confirming that cost disputes are not 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 striking out an appeal if security for costs is not deposited is an impediment to access to justice contrary to Articles 50 and 159 of the Constitution
- 2.Whether a prohibitive cost tag to access to justice contravenes Article 48 of the Constitution
- 3.Whether admissions by a respondent that it is holding an appellant's monies in excess of the security for costs awarded is a relevant factor whose disregard contravenes Articles 50 and 159
- 4.Whether the applicant should be granted a certificate that matters of general public importance arise in the intended appeal
Key legal issues
#Whether questions concerning security for costs and access to justice qualify as matters of general public importance
They do not; the issue of award of costs or security for costs is not a substantial point of law and raises no issue bearing on the public interest
The court held that the law on security for costs is settled by the Court of Appeal Rules, particularly rule 107 requiring security on institution of a civil appeal and empowering direction of further security. Certification requires an issue transcending the particular case with a significant public-interest bearing; questions about costs orders in an inter partes dispute do not meet that threshold.
Whether the Steyn certification principles apply to this application
Yes; the court applied the seven principles laid down in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
The court restated the Steyn criteria in full, including that questions of law must have arisen and been determined in the courts below, that mere apprehension of miscarriage of justice is not a proper basis for certification, and that the applicant must concisely set out the specific elements of general public importance relied upon. The appellant's grounds failed against these criteria.
Whether an advocate could depose to the factual matters in the supporting affidavit
The court questioned the propriety of an advocate swearing to factual matters properly for the client, especially where the client's existence and locus were in doubt
The supporting affidavit was made by Anthony M. Muriithi, Advocate, speaking to the history of the transaction and the claim that the applicant was defrauded. The court found these to be factual matters on which the client, not counsel, should speak - a pointed observation given the respondent's allegation that Westmont had been wound up and did not exist.
Legal principles established
#- For certification under Article 163(4)(b), the intending appellant must show an issue whose determination transcends the circumstances of the particular case and has a significant bearing on the public interest
- Determinations of fact between parties are not by themselves a basis for granting certification for an appeal to the Supreme Court
- The Supreme Court's appellate jurisdiction is not invoked merely to rectify errors on matters of settled law
Court orders
#- 1.The Motion for certification of matters of general public importance is dismissed
- 2.Costs of the Motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 37 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010 (certification that a matter of general public importance is involved)
Relief refused
#Certificate that matters of general public importance are involved in the intended appeal to the Supreme Court
The issues raised concern security for costs and costs, on which there is no uncertainty in law and no significant bearing on the public interest
Stay of the ruling of 8th December 2017 pending the intended appeal
The Motion for certification having failed, the associated stay request fell with it
Costs
The Motion was 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.
We find the Motion to have no merit and it is accordingly dismissed with costs to the respondent.
The issue of award of costs or an order directing the payment of security for costs cannot be a substantial one. There is no uncertainty in law on that issue as the Court of Appeal Rules are clear on the issue of costs or payment of additional costs or security for costs.
It is now sufficiently clear that, as a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked save in accordance with the terms of the Constitution and the law, and not merely for the purpose of rectifying errors with regard to matters of settled law
for a case to be certified as one involving a matter of general public importance, 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
These, with respect, are not issues that an advocate retained in a matter by a disclosed client should speak to; the client should emerge and speak loudly and forthrightly to such matters of fact.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Westmont Holdings Sdn.BHD v Central Bank of Kenya [2021] KECA 393 (KLR)", Case Analysis (2021). Civil Application No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/393/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.