Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased).) v Mukolwe & 2 others (Sued as the Administrators of the Estate of David Nyambu Kituri - Deceased) & another (Civil Application 4 of 2018) [2023] KECA 141 (KLR)
The bottom line
#The Court of Appeal refused to let an adverse possession land dispute go to the Supreme Court, confirming such claims are settled law and stay at the Court of Appeal.
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 matters of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 2.Whether the questions raised on the doctrine of adverse possession under sections 7, 13, 17 and 38 of the Limitation of Actions Act meet the certification threshold
- 3.Whether the question whether adverse possession amounts to a right to property under Article 40 of the Constitution qualifies, having not been canvassed in the courts below
- 4.Whether the Court can grant an injunction pending the hearing of an intended appeal to the Supreme Court before certification
Key legal issues
#Whether adverse possession claims raise matters of general public importance for Supreme Court certification
They do not; the doctrine is sufficiently settled and such claims fall within the Court of Appeal's jurisdiction.
The Court applied the Supreme Court's Malcolm Bell decision, which held that adverse possession is sufficiently settled in law and is no longer a proper subject of general public importance for the Supreme Court's appellate jurisdiction. The applicants' five proposed issues all revolved around adverse possession, which had been determined by both superior courts on the facts.
Whether the Article 40 property-rights question could ground certification
No, because it was not canvassed or determined in the courts below.
Under the Hermanus Phillipus Steyn criteria, a substantial point of law must have arisen in the courts below and been the subject of judicial determination. On perusal of the originating summons, the High Court judgment and the Court of Appeal judgment, the issue whether adverse possession amounts to a right to property under Article 40 was never canvassed or determined in either court, so it fails the threshold.
Whether the applicants' disputes over years of possession could support certification
No; contests of fact are not a basis for certification.
The applicants' contention that they had occupied the suit property since 1969 raised a contest on facts, which under the Steyn principles cannot be a basis for granting certification. The High Court had found the applicants failed to prove dispossession or uninterrupted possession for over 12 years, and the Court of Appeal upheld that finding.
Legal principles established
#- For certification under Article 163(4)(b), the intending appellant must show a substantial point of law that arose and was determined in the courts below and whose determination transcends the particular case and bears significantly on the public interest; determinations of fact are not a basis for certification.
- Questions pertaining to claims under adverse possession are settled in law and fall within the Court of Appeal's jurisdiction; they do not qualify as matters of general public importance for the Supreme Court.
Court orders
#- 1.Declined to certify the intended appeal as one raising a matter of general public importance fit for appeal in the Supreme Court
- 2.Dismissed the application with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification of a matter of general public importance), section 3A & 3B of the Appellate Jurisdiction Act, Rule 24(1) of the Supreme Court Rules, and Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules
Relief refused
#Certification and leave to appeal to the Supreme Court
The applicants failed to demonstrate a substantial question of law or matter of general public importance transcending the dispute; adverse possession is settled law per Malcolm Bell
Injunction restraining alienation of the suit property pending the intended appeal
Fell with the dismissal of the certification application; respondents argued the Court is functus officio on the matter save for certification
Costs
The application is dismissed with costs (costs to the respondents).
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.
Accordingly, we decline to certify the intended appeal as one raising a matter of general public importance fit for appeal in the Supreme Court. The application is accordingly dismissed with costs.
We come to the conclusion that the applicants have not convinced us that there is any substantial question of law or matter of general public importance, the determination of which transcends the dispute between the applicants and the respondents.
All questions pertaining to claims under adverse possession, fell squarely within the Court of Appeal’s jurisdiction, and there would be no basis for invoking the Supreme Court’s jurisdiction in that regard
Issues in the judgment
#The judgment refers to sections 7, 13, 17 and 38 of the Limitation of Actions Act in the applicants' submissions, but the 1st respondents' submissions refer to 'section 7, 13, 17 and 18 of the Limitation of Actions Act' - an apparent typographical inconsistency in the section number.
The judgment states the Court of Appeal judgment was delivered on 16th February 2018, yet the application before the Court is dated 27th February 2018 and the record elsewhere describes the applicants as aggrieved by 'the judgment of this Court'; the dates are internally consistent but the High Court judgment date (27th January 2017) and the description of the appeal timeline should be verified against the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased).) v Mukolwe & 2 others (Sued as the Administrators of the Estate of David Nyambu Kituri - Deceased) & another (Civil Application 4 of 2018) [2023] KECA 141 (KLR)", Case Analysis (2023). Notice of motion dated 27th February 2018 (application for certification under Article 163(4)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/141/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.