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Court of AppealDismissedApplication dated 26th April 2023 arising from Mombasa Civil Appeal No. 37 of 2020

Emfil Limited v Attorney General & 17 others (Civil Application E032 of 2023) [2024] KECA 665 (KLR)

Court of Appeal of Kenya
25 January 2024
4,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Court of Appeal at Mombasa (Nyamweya, Lesiit and Odunga, JJA) determines an application by Emfil Limited, dated 26th April 2023, seeking certification under Article 163(4)(b) of the Constitution that its intended appeal to the Supreme Court raises matters of general public importance, and leave to appeal against part of the Court's judgment of 14th April 2023 in Mombasa Civil Appeal No. 37 of 2020. That judgment partially allowed the Attorney General's appeal against an ELC ruling (A. Omollo J., 20th July 2017) striking out defences: the striking out of the 1st to 7th Defendants' defences was confirmed, but the striking out of the defences of specified third-party defendants was set aside and remitted for trial, the trial judge having wrongly relied on affidavit evidence contrary to Order 2 Rule 15(2), as explained in D.T. Dobie & Company (Kenya) Ltd vs Muchina. Applying the Supreme Court's principles in Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone and Malcolm Bell vs Daniel Torotich arap Moi, the Court held that the only issue decided in the appeal was whether the trial judge properly exercised her discretion in striking out defences - a mundane issue that cannot transcend the circumstances of the case. The Applicant's claimed substantial issues are yet to be determined by the trial court on remittal; no contradictory precedents creating legal uncertainty were identified, since the reinstated defendants were not parties to the earlier Emfil decisions; and complaints about the Attorney General's role and judgment delay were never judicially determined. 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 intended appeal to the Supreme Court raises a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
  2. 2.Whether the issues identified by the Applicant constitute substantial questions of law
  3. 3.Whether there exists any uncertainty in the law arising from contradictory precedents requiring resolution by the Supreme Court

Key legal issues

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01

Whether the intended appeal raises a substantial question of law of general public importance

Holding

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.

Reasoning

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.

p. 7
02

Whether contradictory precedents create uncertainty in the law requiring Supreme Court resolution

Holding

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.

Reasoning

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.

p. 8
03

Whether issues not the subject of judicial determination in the courts below can found certification

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The application for certification and leave to appeal to the Supreme Court is dismissed with costs 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
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

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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

p. 8

Costs

Application 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.

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.
p. 8Disposition - dismissal of certification application
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.
p. 8Striking-out applications rarely raise matters of general public importance
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.
p. 8Reluctance to certify where alternative avenues exist
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.
p. 8No public interest in triable-issue determinations

Issues in the judgment

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minor

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.

minor

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

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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, "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.