Njowamu Construction Company Ltd & another v Kiarie (Civil Application Sup 20 of 2019) [2023] KECA 425 (KLR)
The bottom line
#The Court of Appeal dismissed a late attempt to take a private land dispute to the Supreme Court, confirming strict 14-day filing deadlines apply.
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 for certification, filed outside the 14-day window in rule 40 of the Court of Appeal Rules, 2010, is competent
- 2.Whether the intended appeal involves a matter of general public importance warranting certification under Article 163(4)(b)
- 3.Whether the Court can grant a stay of execution of its own final judgment
Key legal issues
#Competency of a late certification application under rule 40
The application, filed about 113 days after the decision, was out of time and incompetent; no enlargement of time was sought and no delay was explained.
Rule 40 requires a certification application to be made within fourteen days of the decision. The application dated 30th September 2019 was in fact filed on 11th October 2019 against a decision of 21st June 2019, a gap of about 113 days. The applicants neither explained the delay nor moved the Court to enlarge time, so the application failed on competency, though the Court went on to consider the merits in case it was wrong.
Whether a matter of general public importance was demonstrated
No. The intended appeal raised ordinary issues from a private sale-of-land transaction with no bearing on the public interest.
Applying the Hermanus Phillipus Steyn principles and the Kenya Plantation and Agricultural Workers’ Union elaboration, the Court held that issues on specific performance and penalty/saving clauses in a private sale agreement do not transcend the parties' litigation interests. Private grievances between private citizens over land rights cannot found certification, and there was no jurisprudential value in Supreme Court intervention.
Stay of execution of the Court's own final judgment
Refused; the Court is functus officio after delivering final judgment.
The Court accepted the respondent's submission, supported by its prior decision in Dickson Muricho Muriuki, that having pronounced final judgment and downed its tools, it lacked jurisdiction to grant a stay of its own decree. No remedy lay in the same proceedings; the applicants' recourse, if any, was an application to the Supreme Court.
Legal principles established
#- An application for certification under rule 40 of the Court of Appeal Rules, 2010 must be filed within fourteen days of the decision sought to be appealed, and unexplained delay renders the application incompetent.
- A matter of general public importance must transcend the circumstances of the particular case and bear on the public interest; ordinary contractual disputes between private parties do not qualify for certification under Article 163(4)(b).
- Once the Court of Appeal has pronounced final judgment, it is functus officio and cannot grant a stay of execution of its own judgment.
Court orders
#- 1.The notice of motion application dated 30th September 2019 is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Nairobi ELC No. 382 of 2008
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; rule 40 of the Court of Appeal Rules, 2010
Relief refused
#Certification that a matter of general public importance is involved in the intended appeal to the Supreme Court
The issues raised do not transcend the private dispute between the parties and carry no jurisprudential value; in any event the application was filed out of time and is incompetent
Injunction/stay of execution of the Court of Appeal judgment pending the intended appeal
The Court, having pronounced final judgment, is functus officio and cannot grant the stay
Costs
The application 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.
It is evident that the application was not filed within 14 days of this Court’s decision as contemplated under the provisions of Rule 40.
The instant application is, therefore, in our view, incompetent having been filed outside the timeline provided for under rule 40 of the Court of Appeal Rules, 2010.
They do not transcend the litigation interests of the parties herein, nor do they raise any issues of general public importance.
this Court having pronounced the final judgment, it is now functus oficio and must down its tools.
In the circumstances, it is our finding that the present application is without merit, and is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment does not state the full names or correct description of the parties or the exact case number of the application before the Court; it is referred to only as a notice of motion dated 30th September 2019 arising from Civil Appeal No. 61 of 2016.
The judgment spells 'functus officio' as 'functus oficio' in the passages on the stay prayer.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njowamu Construction Company Ltd & another v Kiarie (Civil Application Sup 20 of 2019) [2023] KECA 425 (KLR)", Case Analysis (2023). Civil Application Nai. E090 of 2019 (arising from Civil Appeal No. 61 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/425/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.