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Court of AppealDismissedCivil Application No. 6 of 2018

Westmont Holdings Sdn.BHD v Central Bank of Kenya [2021] KECA 393 (KLR)

Court of Appeal
23 July 2021
2,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Westmont Holdings Sdn. Bhd sought, under Article 163(4)(b) of the Constitution, a certificate that three questions arising from a Court of Appeal ruling of 8th December 2017 (Visram, W. Karanja & Koome, JJ.A.) were of general public importance fit for the Supreme Court, together with a stay of that ruling. The underlying ruling had ordered the applicant to deposit Ksh.20,000,000 as security for costs of an appeal against the dismissal of its suit against the Central Bank of Kenya, failing which the appeal would stand struck out. The applicant argued that conditioning the hearing of an appeal on a security deposit contravened Articles 48, 50 and 159 of the Constitution by impeding access to justice, especially as it claimed to have been defrauded of Ksh.185,500,000. The respondent maintained that the applicant had been wound up, lacked capacity, and that no matters of general public importance arose. The Court of Appeal (Nambuye, Kiage & Kantai, JJ.A.) applied the certification principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone and Malcom Bell v Daniel Toroitich Arap Moi, holding that questions about the award of costs or security for costs are not substantial points of law, that the Court of Appeal Rules (notably rule 107) are clear on the subject, and that no issue with a significant bearing on the public interest had been raised. It also questioned the propriety of counsel swearing the supporting affidavit on factual matters. The Motion was dismissed with costs to the respondent; the prior ruling was not disturbed.

Questions the Court framed

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

  1. 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. 2.Whether a prohibitive cost tag to access to justice contravenes Article 48 of the Constitution
  3. 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. 4.Whether the applicant should be granted a certificate that matters of general public importance arise in the intended appeal

Key legal issues

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01

Whether questions concerning security for costs and access to justice qualify as matters of general public importance

Holding

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

Reasoning

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.

p. 3
02

Whether the Steyn certification principles apply to this application

Holding

Yes; the court applied the seven principles laid down in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone

Reasoning

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.

p. 3
03

Whether an advocate could depose to the factual matters in the supporting affidavit

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Motion for certification of matters of general public importance is dismissed
  2. 2.Costs of the Motion awarded to the respondent

The bench

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

majority
majority
majority
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

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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

p. 3

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

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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.
p. 3Disposition - certification application dismissed
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.
p. 3Costs and security for costs are not matters of general public importance
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
p. 3Supreme Court appellate jurisdiction not for rectifying errors 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
p. 3Test for certification under Article 163(4)(b)
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.
p. 2Improper affidavit evidence by advocate on factual matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.