Emfil Limited v Attorney General & 17 others (Civil Application E032 of 2023) [2024] KECA 665 (KLR)
The bottom line
#The Court of Appeal refused to let Emfil Limited take its land dispute to the Supreme Court, ruling that striking out defences is too routine a matter to warrant Kenya's highest court.
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 to the Supreme Court raises a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 2.Whether the issues identified by the Applicant constitute substantial questions of law
- 3.Whether there exists any uncertainty in the law arising from contradictory precedents requiring resolution by the Supreme Court
Key legal issues
#Whether the intended appeal raises a substantial question of law of general public importance
It does not. The only question before the Court of Appeal in the appeal was whether the trial judge properly exercised her discretion in striking out defences, and that issue is mundane and does not bear on the public interest.
The Court held it was only called upon to decide whether the trial judge exercised her discretion properly in striking out defences. Part of the decision was set aside and remitted for trial, so the Applicant's claimed substantial issues are pending before the trial court and were not determined by the Court of Appeal. Striking out applications are routine and their determination rarely affects the public interest.
Whether contradictory precedents create uncertainty in the law requiring Supreme Court resolution
No contradiction arises: the Court of Appeal found the Defendants whose defences were reinstated were not parties to the earlier decisions, so the earlier determinations could not properly apply to them.
The Applicant alleged its decision conflicted with prior Emfil decisions. The Court explained that the Defendants whose defences were reinstated were not parties to those earlier proceedings, and whether the prior determinations applied to them ought to emerge in the remitted proceedings. Thus no contradiction of precedent exists for the Supreme Court to resolve.
Whether issues not the subject of judicial determination in the courts below can found certification
They cannot. Complaints about the Attorney General's role, delay in delivery of judgment and other procedural issues did not arise before the Court or courts below.
Following the Steyn principles, questions of law must have arisen in the courts below and been the subject of judicial determination. The Applicant's contentions regarding the role of the Attorney General in appealing, the delay in delivering judgment under Order 21 Rule 1, and waiver of appeal rights by parties were never determined and therefore cannot be certified as matters of general public importance.
Legal principles established
#- Striking out of pleadings, being run-of-the-mill applications, cannot without more transcend the circumstances of a case or bear significantly on the public interest so as to warrant certification for appeal to the Supreme Court.
- Questions of law for certification must have arisen and been the subject of judicial determination in the courts below; issues merely argued in an application but not determined cannot found certification.
- Where a party still has an available avenue to ventilate its grievances, the court ought to be slow to certify a matter or grant leave to appeal to the Supreme Court.
Court orders
#- 1.The application for certification and leave to appeal to the Supreme Court is dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Environment and Land Court Case No. 113 of 2015
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification that an intended appeal to the Supreme Court involves a matter of general public importance
Relief refused
#Certification that the intended appeal involves matters of general public importance and leave to appeal to the Supreme Court
The application failed the test set out in Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone; the issues were either yet to be determined by the trial court on remittal, did not arise from the appeal, or did not transcend the circumstances of the case
Costs
Application dismissed with 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.
It is therefore our view that this application has failed the test set out in Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone (supra). We dismiss it with costs to the Respondents.
Applications for striking out pleadings are a run of the mill in our jurisdiction and their determination one way or the other, even if substantial rarely have significant bearing on the public interest.
In our view, where a party has an avenue through which it may ventilate its grievances, the Court ought to be slow in certifying such matters or granting leave to appeal to the Supreme Court.
We fail to see what matters of public interest needs to be determined in such a mundane issue as to whether the defence raised triable issues for the purposes of striking out pleadings.
Issues in the judgment
#The opening paragraph refers to a bench of Gatembu, Nyamweya and Lesiit JJA delivering the underlying appeal judgment, but the certification ruling is delivered by P. Nyamweya, J. Lesiit and G. V. Odunga JA, and no judge is named as author of this ruling.
The judgment contains typographical errors in defendant numbering ('the 12th, 142nd, 145th, 147th, 149th, 154th, 239th, 241st, 293rd, 306th, 308th and 318th' versus lists repeating '154th'), and a garbled paragraph numbering ('71.') inserted mid-quote in the Mwambeja extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emfil Limited v Attorney General & 17 others (Civil Application E032 of 2023) [2024] KECA 665 (KLR)", Case Analysis (2024). Application dated 26th April 2023 arising from Mombasa Civil Appeal No. 37 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/665/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.