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Court of AppealDismissedNot stated in the judgment

Mangi v Green & 3 others (Civil Appeal (Application) E001 of 2022) [2023] KECA 1190 (KLR)

Court of Appeal
6 October 2023
3,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal declined to let a land dispute reach the Supreme Court because the application was late and raised no public importance.

What this practically means

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Executive summary

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This was an application by Joseph Kazungu Yaa Mangi for certification and leave to appeal to the Supreme Court against a Court of Appeal judgment (Gatembu, Nyamweya & Lesiit, JJA) of September 23, 2022, and for stay of that judgment pending the intended appeal. The applicant contended that the intended appeal raised matters of general public importance concerning legitimate expectation against state actors, land allocation under the Agriculture Act and Settlement Fund Trustees, the interaction of the Agriculture and Land Registration Acts, and the interplay between section 26 of the Land Registration Act and Article 40 of the Constitution. The respondents opposed, arguing the application was out of time, incompetent, and raised no matter of general public importance, and that the Court of Appeal is functus officio and cannot stay its own judgment. The Court (Gatembu, Nyamweya & Lesiit, JJA) framed three issues: competency, certification, and stay. It found the application incompetent, having been filed outside the fourteen-day period in Rule 42 of the Court of Appeal Rules, 2022 without an extension of time, and without the decision appealed from annexed as Rule 79 requires. Applying the Supreme Court's criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone, it held that the dispute was a private land dispute governed by settled law under section 26 of the Land Registration Act, and that the issues raised were new and not determined below. Certification and leave were accordingly declined. On stay, the Court applied Dickson Muricho Muriuki, holding that once it has pronounced final judgment it is functus officio and, absent statutory authority, cannot reopen the case. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the instant application is competently filed
  2. 2.Whether the intended appeal to the Supreme Court raises a matter of general public importance, and is therefore eligible for certification as such to warrant leave
  3. 3.Whether stay of execution of the judgment should be granted

Key legal issues

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01

Competency of the application for certification and leave

Holding

The application was incompetent as it was filed out of the fourteen-day window in Rule 42 of the Court of Appeal Rules, 2022, with no extension of time sought, and the decision appealed from was not annexed as required by Rule 79.

Reasoning

Rule 42 requires an application for certification to be made by motion or chamber summons within fourteen days of the decision. The judgment was delivered on September 23, 2022 and the application was dated and lodged on October 6, 2022, outside the window, and no extension was sought. The Applicant also failed to annex the decision appealed from as Rule 79 requires. These dual defaults rendered the application incompetent.

p. 4
02

Whether the intended appeal raises a matter of general public importance warranting certification under Article 163(4)(b)

Holding

It does not. The dispute was a private land dispute between an alleged allottee and registered lessees, governed by settled law under section 26 of the Land Registration Act and settled precedent; the issues raised did not arise from or were not determined in the courts below.

Reasoning

Applying the Steyn criteria, the intending appellant must show an issue transcending the parties' circumstances with a significant bearing on the public interest, being a substantial point of law that arose and was determined below. The dispute concerned private interests in land parcel Kilifi/Mtondia/182, the law on impeaching title being settled, and the alleged questions of legitimate expectation and statutory interpretation were new issues not arising from the pleadings or the appeal.

p. 6
03

Whether the Court of Appeal can stay execution of its own judgment pending an intended appeal to the Supreme Court

Holding

It cannot. Once the Court has pronounced final judgment it is functus officio and, absent statutory authority, cannot reopen the case; the proper forum for such an application is the Supreme Court.

Reasoning

Relying on Dickson Muricho Muriuki, the Court noted that although it has inherent power under Rule 1(2) to make orders necessary for the ends of justice, that jurisdiction cannot be invoked where the application is itself incompetent and fails the certification threshold. The Court adopted the functus officio principle, consistent with the respondents' submission that the proper forum is the Supreme Court.

p. 6

Legal principles established

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  • An application for certification under Rule 42 must be filed within fourteen days of the decision; an application filed out of time without extension of time is incompetent.
  • A question of law taken to the Supreme Court on certification must have arisen and been judicially determined in the courts below.
  • The Court of Appeal, having pronounced final judgment, is functus officio and cannot grant stay of its own judgment pending appeal to the Supreme Court absent statutory authority.

Court orders

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  1. 1.The Applicant's Notice of Motion dated October 6, 2022 is dismissed
  2. 2.Costs of the application to the respondents

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 (Gatembu, Nyamweya & Lesiit, JJA)
Not stated; appeal originated from Malindi ELC Case No 25 of 2018
Jurisdiction invoked
Article 163(4) of the Constitution; Rule 42 and Rule 79 of the Court of Appeal Rules, 2022

Relief refused

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Certification and/or leave to appeal to the Supreme Court under Article 163(4)

The intended appeal does not raise an issue of general public importance transcending the parties' circumstances, and the application was filed out of time without extension

p. 6

Stay of execution of the Court of Appeal judgment pending the intended appeal

The Court, having delivered final judgment, is functus officio and cannot stay its own judgment absent statutory authority

p. 6

Costs

The Applicant's Notice of Motion dated October 6, 2022 is accordingly dismissed with costs to the respondents.

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.

The Applicant’s Notice of Motion dated October 6, 2022 is accordingly dismissed with costs to the respondents.
p. 6Final orders - dismissal
we are not persuaded that the intended appeal raises an issue of general public importance which transcends the circumstances of the particular case and has a significant bearing on the public interest, nor that it raises any substantial point of law which will have a significant bearing on the public interest. In the result, the requested certification and/or leave is declined.
p. 6Certification under Article 163(4)(b)
once this Court has pronounced the final judgment, it is functus officio and in the absence of statutory authority, is prevented from reopening a case.
p. 6Functus officio - stay of own judgment
The application is therefore incompetently before this Court, having been filed out of time, and the Applicant having failed to seek extension of time.
p. 4Competency - Rule 42 time limit

Issues in the judgment

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minor

The judgment refers to the Steyn decision variously as a Court of Appeal decision ([2012] eKLR) and as a Supreme Court decision ([2013] eKLR / (2013) eKLR), and spells the case name inconsistently (Gnecchi/Gnechii/Gathiha variants).

minor

The judgment records that the Applicant was the alleged lawful allottee of the land, but describes the respondents in the impugned-judgment quotation as 'the Appellants', reflecting the parties' designations in the underlying appeal rather than this application.

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, "Mangi v Green & 3 others (Civil Appeal (Application) E001 of 2022) [2023] KECA 1190 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1190/eng@2023-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.