Maingi Mbinzu And 314 others v County Council Of Kitui & another [2021] KECA 1029 (KLR)
The bottom line
#The Court of Appeal refused 315 Kitui villagers permission to take their land dispute to the Supreme Court, because their case was about routine court decisions, not a matter of wide 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 a matter of general public importance warranting certification for appeal to the Supreme Court under Article 163(4)(b)
Key legal issues
#Whether an intended appeal against refusal of review of an interlocutory striking-out order raises a matter of general public importance under Article 163(4)(b)
It does not. The intended appeal would concern the exercise of judicial discretion in an ordinary review application, not the ownership of land, and the applicants failed to demonstrate specific elements of real public interest and concern transcending their litigation interests.
Article 163(4)(b) confines leave to matters of general public importance. The Court applied the Steyn v Gnecchi-Ruscone threshold: the matter must have substantial, broad-based impacts transcending the parties and bearing on public interest, and any point of law must have been raised and considered below. The intended appeal targets a routine exercise of discretion on a review application; the underlying land question would not be before the Supreme Court. The applicants bore the burden and did not discharge it.
Legal principles established
#- Leave to appeal to the Supreme Court under Article 163(4)(b) requires certification that the matter carries specific elements of real public interest and concern, transcending the litigation-interests of the parties, and any such point of law must have been raised and considered by the courts below.
- An intended appeal challenging the ordinary exercise of judicial discretion in refusing a review does not satisfy the general-public-importance threshold.
Court orders
#- 1.The application for leave (certification) to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- CA No. 6 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - application for certification that a matter of general public importance is involved in an intended appeal to the Supreme Court
Relief refused
#Leave/certification to appeal to the Supreme Court
The intended appeal concerns the exercise of judicial discretion on a review application and does not raise a matter of general public importance transcending the parties
Costs
The application was dismissed with costs to the 2nd 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.
In a nutshell, the application does not meet the requisite threshold for the grant of leave or certificate to appeal to the Supreme Court. We accordingly dismiss it with costs to the 2nd respondent.
its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern
Applications for review are an everyday affair in courts; fairly ordinary matters are decided through the legitimate exercise of discretion.
Though the categories of what constitutes a matter of general public importance are not closed, the burden fell on the applicants to prove that the matter in question indeed “carried specific elements of real public interest and concern”.
Issues in the judgment
#The judgment quotes extensively from the prior Court of Appeal decision (CA No. 6 of 2017) including its dismissal order; these are quotations from the decision under review, not orders of this Court.
The preamble describes the decision being appealed as dated 15th December 2017 by G.B.M. Kariuki, F. Sichale & S. ole Kantai JJ.A., while the coram lists a differently constituted bench (Ouko, Nambuye & Koome JJ.A.) deciding the certification application; the judgment also refers to a Jaden, J. ruling and, in the quoted passage, to 'Waweru, J.', an internal inconsistency in the name of the judge who struck out the suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi Mbinzu And 314 others v County Council Of Kitui & another [2021] KECA 1029 (KLR)", Case Analysis (2021). Civil Application Sup. No. 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1029/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.