Gatua v Mathenge (Civil Appeal (Application) 94 of 2018) [2024] KECA 1318 (KLR)
The bottom line
#The Court of Appeal refused to send a Nakuru land dispute to the Supreme Court, ruling that simply being unhappy with a judgment is not a reason to appeal further.
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 raises a matter of general public importance warranting certification and leave to appeal to the Supreme Court under Article 163(4)(b)
- 2.Whether the grounds raised by the applicant - attacking the merits of the Court of Appeal judgment and the ELC's jurisdiction - meet the certification threshold
Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
It does not. The applicant identified no question transcending the parties' dispute, no conflicting decisions, and the repealed Land Disputes Tribunal Act makes the dispute party-specific.
The Court applied the settled principles from Hermanus Phillipus Steyn and KPAWU: the intending appellant must identify and concisely set out the specific elements of general public importance, showing that the issue transcends the circumstances of the case and bears significantly on the public interest. The applicant's grounds, analysed, amounted to dissatisfaction with the merits of the Court of Appeal judgment - including complaints about procedure following crystallisation of the tribunal award, limitation of actions, and supervisory jurisdiction - none of which was demonstrated to be a substantial point of law with significant public bearing. The Act being long repealed, the dispute cannot affect the general public.
Whether the application is properly characterised as an attack on the merits rather than a certification question
Yes. The grounds sought to re-litigate the merits of the Court of Appeal judgment, which is impermissible on a certification application.
The Court held that on certification the applicant must demonstrate how the questions raised amount to issues of general public importance transcending the dispute. Analysis of the applicant's multiple grounds - including alleged errors in summing up facts, condonation of fraud, the decree's age under the Limitation of Actions Act, abatement, and error apparent on the face of the record - showed they were directed at the correctness of the judgment, not at any recurring legal question of public import.
Legal principles established
#- Certification and grant of leave to appeal to the Supreme Court under Article 163(4)(b) is only appropriate where the matter raises a question of general public importance whose consequences are substantial, broad-based, transcend the litigation interests of the parties and bear upon the public interest; mere dissatisfaction with a judgment is insufficient.
- On a certification application, the test is not whether the Court of Appeal would have reached a different conclusion on the same facts, nor the merit or otherwise of its judgment; the applicant must demonstrate how the questions raised amount to issues of general public importance.
- Good practice is to originate an application for certification in the Court of Appeal, which is better placed to certify whether a matter of general public importance is involved; dissatisfaction lies in a review to the Supreme Court under Article 163(5).
Court orders
#- 1.The Notice of Motion dated 3rd April 2024 seeking certification and leave to appeal to the Supreme Court is dismissed in its entirety
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal (Nakuru)
- Nakuru Civil Appeal No. 94 of 2018
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya (certification that a matter of general public importance is involved), with Articles 159 and 163(5) and section 3B of the Appellate Jurisdiction Act and rules 1(2) and 42 of the Court of Appeal Rules, 2022
Relief refused
#Certification that the matter involves a question of general public importance and leave to appeal to the Supreme Court under Article 163(4)(b)
The applicant failed to demonstrate any point of general public importance transcending the parties' dispute; the grounds merely expressed dissatisfaction with the Court of Appeal judgment, and the Land Disputes Tribunal Act is long repealed, making the dispute specific to the parties
Costs
Costs of the application to the respondent (the application dismissed with costs to the respondent)
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.
certification and grant of leave to appeal to the Supreme Court is only appropriate in a case that raises a matter of general public importance, whose consequences are substantial, broad-based, transcending the litigation interests of the parties and bearing upon the public interest.
A mere dissatisfaction with a judgment is not enough in an adversarial system where there will always be an unhappy party.
The applicant has not demonstrated, even one single point, that can be termed as a point of general public importance that transcends the dispute between these parties.
Accordingly, we find that the application is unmerited and we dismiss it in its entirety with costs to the respondent.
Issues in the judgment
#The applicant's written submissions are dated 6th February 2024 while the respondent's are dated 12th September 2022, yet the application itself is dated 3rd April 2024, indicating an apparent internal date inconsistency.
The copy of the judgment as provided is signed by three judges of appeal (Warsame, Mativo, Gachoka) while the impugned decision of 22nd March 2024 was rendered by Ochieng, Gachoka & Korir, JJ.A. - a differently constituted bench, correctly so, but the applicant's name is not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatua v Mathenge (Civil Appeal (Application) 94 of 2018) [2024] KECA 1318 (KLR)", Case Analysis (2024). Application arising from Nakuru Civil Appeal No. 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1318/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.