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Court of AppealDismissedCivil Application No. E108 of 2021 (as arising from Eldoret Civil Appeal No. 112 of 2018)

Boit & another v Kibias (Civil Application E017 of 2023) [2024] KECA 63 (KLR)

Court of Appeal
2 February 2024
2,946 words in judgment
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The bottom line

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The Court of Appeal refused to send this land dispute to the Supreme Court, ruling that private disagreements don't qualify as matters of general public importance.

What this practically means

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Executive summary

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Thomas Kimutai Boit and Josiah Kimebur Kibias applied under Article 163(4) of the Constitution, section 19 of the Supreme Court Act and rules 24 and 26 of the Supreme Court Rules, seeking certification that their intended appeal raised matters of general public importance and leave to appeal to the Supreme Court. Their litigation history: the Chief Magistrate's Court at Eldoret dismissed the respondent's claim in 2014; the Environment and Land Court allowed the respondent's appeal in 2018; the Court of Appeal dismissed the applicants' appeal (Eldoret Civil Appeal No. 112 of 2018) in July 2021; and their application for review (Eldoret Civil Application No. E108 of 2021) was dismissed on 31st March 2023 as a disguised appeal. The applicants argued the intended appeal raised questions on the Court's residual jurisdiction, the parol evidence rule, the effect of land control board consent, privity of contract and constructive trusts. The respondent opposed, relying on the Steyn threshold for certification. The Court framed a single question: whether the intended appeal raised a matter of general public importance. Applying the Supreme Court's jurisprudence in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone and Sanitam Services (EA) Ltd, it held the issues did not transcend the parties' dispute; a mere apprehension of miscarriage of justice is not a proper basis for certification; and the applicants failed to identify any issue of general public importance. The Court also criticised the convoluted attempt to appeal against both the 2021 judgment and the 2023 ruling in one application. The notice of motion dated 14th April 2023 was dismissed in its entirety with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the applicants' intended appeal raises a matter or matters of general public importance warranting certification for appeal to the Supreme Court

Key legal issues

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01

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

Holding

It does not; the issues raised do not disclose substantial and broad-based consequences transcending the litigation interests of the parties, and the applicants failed to show any uncertainty in the law occasioned by the decisions below.

Reasoning

Applying the Steyn threshold, the Court found the applicants' grievances - residual jurisdiction, the parol evidence rule, land control board consent and privity of contract - did not transcend the particular dispute. The applicants sought to further their dissatisfaction with the Court's judgment and ruling; the intended litigation does not enter the public sphere. A mere belief that injustice was occasioned is not the purpose for which the Supreme Court was created.

p. 5

Legal principles established

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  • The onus of establishing that a matter meets the threshold for certification to the Supreme Court reposes with the intended appellant, who must identify and formulate the matter of public importance relied upon
  • Mere dissatisfaction with a judgment or apprehension of miscarriage of justice does not transcend the parties' dispute and is not a basis for certification under Article 163(4)(b)
  • Each ruling or judgment is ordinarily appealed against individually; consolidation of appeals or leave applications is a matter for the Court appealed to, not for a party through a single convoluted application

Court orders

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  1. 1.The Court declines to certify the intended appeal as befitting a hearing by the Supreme Court
  2. 2.The notice of motion dated 14th April 2023 is dismissed in its entirety with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Eldoret (Appeal No. 8 of 2014), with prior dismissal by this Court in Eldoret Civil Appeal No. 112 of 2018 and Civil Application No. E108 of 2021
Eldoret Civil Application No. E108 of 2021
Jurisdiction invoked
Article 163(4) of the Constitution; section 19 of the Supreme Court Act; rules 24 and 26 of the Supreme Court Rules; rules 5(2) and 40 of the Court of Appeal Rules (application for certification of an intended appeal as raising a matter of general public importance and leave to appeal to the Supreme Court)

Relief refused

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Certification of the intended appeal as raising a matter of general public importance and leave to appeal to the Supreme Court

The applicants failed to establish any issue of general public importance; the intended appeal does not transcend the parties' dispute and is a mere apprehension of miscarriage of justice

p. 5

Costs

The notice of motion is dismissed in its entirety with costs to the respondent.

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 upshot of the foregoing is that the notice of motion dated 14th April 2023 has no merit. We decline to certify the intended appeal as befitting a hearing by the Supreme Court. The notice of motion is hereby dismissed in its entirety with costs to the respondent.
p. 6Final orders - dismissal of certification application
These issues do not disclose substantial and broad-based consequences transcending the litigation interests of the parties, and bearing upon the public interest.
p. 5Failure to meet the general public importance threshold
All that we see in this application are parties who seek to further their dissatisfaction with the judgment and ruling of the Court and nothing of general public interest at all.
p. 5Dissatisfaction is not a matter of general public importance

Issues in the judgment

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minor

The ruling sought to be appealed was delivered by Sichale, Ochieng & Achode, JJA, yet two of those judges (Sichale and Achode) sat on this certification application, with no mention of their prior involvement.

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, "Boit & another v Kibias (Civil Application E017 of 2023) [2024] KECA 63 (KLR)", Case Analysis (2024). Civil Application No. E108 of 2021 (as arising from Eldoret Civil Appeal No. 112 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/63/eng@2024-02-02

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