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Court of AppealDismissedCourt of Appeal Civil Appeal No. 65 of 2018 (Kisumu) - notice of motion under Article 164(4)(b) of the Constitution and Rule 40 of the Court of Appeal Rules

Pamba & 7 others (Suing as the Administrator of the Estate of Hannington Ouma Pamba - Deceased) v Makaka & 3 others (Civil Application E076 of 2024) [2025] KECA 635 (KLR)

Court of Appeal of Kenya
4 April 2025
1,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to send a family land trust dispute to the Supreme Court, ruling the issues were private, not of public importance.

What this practically means

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Executive summary

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The applicants, aggrieved by the Court of Appeal's decision in Civil Appeal No. 65 of 2018 (Kisumu) - in which the Court found that the registered proprietor held family land in customary trust for the wider family of Bwongi - moved the Court under Article 164(4)(b) of the Constitution and Rule 40 of the Court of Appeal Rules seeking certification that their intended appeal to the Supreme Court raises matters of general public importance, together with a stay of execution of the judgment and decree. They framed the proposed issues as whether a claim of trust can override the property rights protected by Article 40; whether a trust claim can be brought on behalf of a deceased's estate without letters of administration; and whether a transfer of land by a deceased person can be reversed after death without proof of fraud, illegality or misrepresentation. The respondents opposed, noting a similar earlier application had been withdrawn, complaining of non-service, asserting the application was filed out of time, and contending that the dispute was essentially one of fraud by the applicants, whose fraudulent titles had already been cancelled. Applying the Supreme Court's test in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, the Court held that an issue of general public importance must transcend the parties' dispute and address genuine legal uncertainty. The core issue determined below was customary trust, an area the Supreme Court had already settled in Isack M'Inanga Kiebia. The applicants' issues were held not to transcend the narrow dispute. The Court declined certification and dismissed the application with costs to the respondents. Bench: H.A. Omondi, F. Tuiyott and L. Kimaru, JJA, delivering a single unanimous ruling at Kisumu on 4 April 2025.

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 matters of general public importance warranting certification under Article 163(4)(b)
  2. 2.Whether a stay of execution of this Court's judgment and decree should be granted pending the intended appeal

Key legal issues

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01

Whether the intended appeal raises matters of general public importance

Holding

It does not; the core issue determined below was customary trust over the suit land, and the applicants' framed issues do not transcend that private dispute

Reasoning

The Court applied the Supreme Court's Steyn test: an issue of general public importance must be public in nature, transcend the circumstances of the case, and address uncertainty or conflicting decisions on a point of law. Here the core issue was whether the suit land was held under customary trust - a settled area of law per Isack M'Inanga Kiebia. The applicants' questions about claims against deceased persons' estates were merely reframings of the narrow dispute between the parties and required no Supreme Court clarification.

p. 4
02

Whether a claim of trust can be adjudicated where letters of administration over a deceased's estate have not been taken

Holding

Framed as a public-importance question, but the Court held it did not transcend the case; the finding below concerned customary trust, not the estate

Reasoning

The applicants argued that a finding of trust was made against a deceased's estate without letters of administration. The Court held that the core determination below was whether the suit land was held under customary trust, not whether registration created or abridged proprietary rights of any specific person, deceased's estate or otherwise. Hence this ground did not elevate the matter to one of general public importance.

p. 4

Legal principles established

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  • For certification under Article 163(4)(b), an applicant must show that the issues transcend the particular case and that there is uncertainty or conflicting authority on a point of law whose clarification serves the public good
  • The law on what constitutes customary trust in land is settled by the Supreme Court and does not raise matters of general public importance for further appeal

Court orders

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  1. 1.Certification that the intended appeal raises matters of general public importance refused (leave to appeal to the Supreme Court declined)
  2. 2.The application 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
Court of Appeal of Kenya (differently constituted, Mumbi Ngugi, JA)
Civil Appeal No. 65 of 2018 (Kisumu)
Jurisdiction invoked
Article 164(4)(b) of the Constitution and Rule 40 of the Court of Appeal Rules; certification under Article 163(4)(b) of the Constitution

Relief refused

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

The issues do not transcend the dispute between the parties; customary trust law is settled

p. 4

Stay of execution of the Court of Appeal judgment and decree pending the intended appeal

It fell with the unsuccessful certification application

p. 4

Costs

The application was 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.

In the premises therefore, we decline to grant leave. The application lacks merit and is hereby dismissed with costs to the respondents.
p. 4Final orders - dismissal of certification and stay application
They are not issues of public importance or novel issues of the law that would require interpretation by the Supreme Court to clarify the law.
p. 4Failure to meet the general public importance threshold
The issue of whether a court can make a finding in regard to the existence of customary trust in land disputes is a well-trodden path that, it may well be said, in the circumstances, that the law is settled.
p. 4Settled law on customary trust
The importance of the matter must be public in nature and must transcend the circumstances of this particular case so as to have a more general significance.
p. 3Test for certification as adopted from Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone

Issues in the judgment

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minor

The judgment is a single-paragraph-structured ruling delivered on the same Civil Appeal No. 65 of 2018 whose own certification application was referenced; the specific motion number of the present application is not stated in the judgment text.

minor

The record states the application was not served on the respondents, yet the Court considered and determined it on the merits without addressing the alleged non-service or the previously withdrawn application.

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, "Pamba & 7 others (Suing as the Administrator of the Estate of Hannington Ouma Pamba - Deceased) v Makaka & 3 others (Civil Application E076 of 2024) [2025] KECA 635 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal No. 65 of 2018 (Kisumu) - notice of motion under Article 164(4)(b) of the Constitution and Rule 40 of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/635/eng@2025-04-04

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