Charles Alexander Kiai v Frashia Wangui Gicheru & 4 others
The bottom line
#The Court of Appeal dismissed a request to send a land dispute to the Supreme Court because it was filed over four years late and raised no issue of public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to entertain an application for certification under Article 163(4)(b)
The Court of Appeal has concurrent jurisdiction with the Supreme Court to hear certification applications at first instance, and the application before it was properly before the Court
Article 163(4)(b) confers jurisdiction on both the Supreme Court and the Court of Appeal to certify matters of general public importance. Section 15B of the Supreme Court Act requires such applications to be filed before and determined by the Court of Appeal at first instance, consistent with the Supreme Court's decision in Sum Model Industries. The respondents' objection that the application should have been filed in the Supreme Court under Section 15 therefore failed.
Whether the application was filed out of time and thereby incompetent
The application was filed four years, two months and nine days after the decision, in violation of Rule 40 (now Rule 42), without extension of time or reasonable explanation, and was incompetent
The applicable procedural provision was Rule 40 of the Court of Appeal Rules 2010, not Rule 39(b), since the application was for certification under Article 163(4)(b). Rule 40 requires such an application to be made within fourteen days of the decision. The application filed on 26th August 2019 against a decision of 17th June 2015 was grossly out of time, no extension had been sought and no reasonable explanation for the delay was furnished.
Whether the intended appeal raises a matter of general public importance warranting certification
The intended appeal raises no uncertainty in the law or substantial question transcending the parties' dispute; the issues raised, including the application of Article 159(2)(d), have already been settled in prior decisions
Applying the Hermanus Phillipus Steyn principles, the applicant had to show that the issues transcend the circumstances of the case and bear significantly on public interest. The complaints about procedural technicalities and Article 159(2)(d) have been widely addressed by this Court and the Supreme Court in Raila Odinga and Musa Cherutich Sirma. The applicant also failed to show how a private land dispute between himself and the 1st respondent had any broader public dimension.
Legal principles established
#- An application for certification of a matter of general public importance under Article 163(4)(b) must, at first instance, be filed before and determined by the Court of Appeal
- An application for a certification under Rule 40 (now Rule 42) of the Court of Appeal Rules must be filed within fourteen days of the decision sought to be appealed, and a filing outside that period without extension of time is incompetent
- Mere apprehension of miscarriage of justice is not a sufficient basis for certifying an appeal to the Supreme Court; the issue must transcend the particular case and bear significantly on public interest
Court orders
#- 1.The Notice of Motion dated 17th August 2019 seeking certification of a matter of general public importance is dismissed
- On appeal from
- Court of Appeal (single Judge, Waki, J.A.)
- Civil Appeal (Application) No. 247 of 2010
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 40 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Alexander Kiai v Frashia Wangui Gicheru & 4 others", Case Analysis (2023). Civil Application No. 96 of 2019 (arising from Civil Appeal (Application) No. 247 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1587/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.