Mangira & another v Asset Recovery Agency; Ali Cars Limited (Affected Party) (Civil Appeal (Application) E132 of 2023) [2025] KECA 910 (KLR)
The bottom line
#The Court of Appeal refused to let a property forfeiture case go to the Supreme Court, ruling the issues were private, not matters of public importance.
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 applicants' Motion, unsupported by any affidavit as required by rule 45(1) of the Court of Appeal Rules, 2022, is competent
- 2.Whether this Court, having delivered its judgment, is functus officio and lacks jurisdiction to grant a stay of the forfeiture orders
- 3.Whether the intended appeal to the Supreme Court raises points of law of general public importance warranting certification under Article 163(4)(b) of the Constitution
Key legal issues
#Competence of an application for certification without a supporting affidavit
A Motion under rule 42 must be supported by an affidavit under rule 45(1); the applicants' Motion was bad in form, though the Court proceeded to consider its merits for the avoidance of doubt.
Rule 45(1) mandatorily requires every formal application to be supported by one or more affidavits of the applicant or a person with knowledge of the facts. Though the Motion was anchored on 19 grounds and intended to be supported by the 1st applicant's affidavit, no affidavit was on record. The respondent did not raise this defect, but the Court found the Motion bad in form and nonetheless addressed the legal questions raised to clarify the law on certification.
Functus officio and stay of the Court's own judgment
The Court of Appeal, having delivered judgment, is functus officio and cannot entertain an application for stay of the forfeiture orders; that jurisdiction lies with the Supreme Court under section 23A of the Supreme Court Act, 2011.
The respondent argued, and the Court agreed, that the Court of Appeal had exhausted its jurisdiction upon delivery of the impugned judgment. Stay of the forfeiture orders pending the intended appeal is a matter for the Supreme Court as mandated by section 23A of the Supreme Court Act, 2011. The prayer for stay therefore fell away for want of jurisdiction.
Certification standard under Article 163(4)(b)
An applicant must concisely delineate the issues of general public importance and demonstrate that they transcend the parties' private interests, carry elements of real public interest and concern, and involve an important question of law whose clarification serves the common good.
Drawing on the Supreme Court's decision in TMG & another v AP and Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, and this Court's decision in Memphis Limited v Kenya Ports Authority, the Court restated that matters of general public importance must transcend the dispute and bear on public interest. The applicants made only a blanketing statement, sought to re-litigate settled law on preservation and forfeiture, and raised no novel issue deserving of the Supreme Court's pronouncement.
Legal principles established
#- A formal application to the Court of Appeal under rule 42 must be supported by an affidavit as mandatorily required by rule 45(1) of the Court of Appeal Rules, 2022; an unsupported Motion is bad in form.
- Upon delivery of its judgment, the Court of Appeal is functus officio and lacks jurisdiction to grant a stay of its own orders; such orders are the preserve of the Supreme Court under section 23A of the Supreme Court Act, 2011.
- Certification to appeal to the Supreme Court requires the applicant to demonstrate issues of general public importance transcending private litigation interests; issues must be concisely delineated, and settled law or unclarified matters do not qualify.
Court orders
#- 1.The applicants' Notice of Motion dated 24th November 2024 (amended 27th November 2024) seeking certification to appeal to the Supreme Court is dismissed
- 2.Costs of the Motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E132 of 2023
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - application for certification that a point of law of general public importance is involved, under rule 42 of the Court of Appeal Rules, 2022
Relief refused
#Certification to appeal to the Supreme Court
The applicants failed to demonstrate that the intended appeal raises points of law of general public importance transcending their private litigation interests
Stay of the forfeiture orders pending appeal
The Court of Appeal lacks jurisdiction, having become functus officio upon delivery of its judgment; such orders are the preserve of the Supreme Court
Costs
Costs of the Motion to the respondent ("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.
we reach the inescapable conclusion that their Motion fails and is hereby dismissed with costs to the respondent. Orders accordingly.
this Court lacks jurisdiction to hear and determine the application for stay having been rendered functus oficio upon delivery of the impugned judgment
the applicants' Motion is bad in form for non-compliance with the mandatory provisions of rule 45(1) of the Rules of this Court
Neither have they raised any novel issue deserving of pronouncement by the Supreme Court.
Issues in the judgment
#The judgment refers to the certification application as both under Article 163(4)(b) of the Constitution and rule 42 (which applies where 'no appeal lies unless the superior court certifies'); the jurisdictional basis is stated as Article 163(4)(b).
The judgment misspells 'offends' as 'ofiends' and 'functus officio' as 'functus oficio' in the transcript.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mangira & another v Asset Recovery Agency; Ali Cars Limited (Affected Party) (Civil Appeal (Application) E132 of 2023) [2025] KECA 910 (KLR)", Case Analysis (2025). Civil Application No. E132 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/910/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.