Salim v Muhaji & another (Civil Application E033 of 2024) [2025] KECA 1294 (KLR)
The bottom line
#Kenya's Court of Appeal refused to send a land dispute to the Supreme Court because the issues raised didn't match the actual decision being challenged.
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 matters complained of are fit for certification to the Supreme Court
- 2.Whether this Court should stay execution of the Ruling of 22nd March 2024 that struck out the Applicant's motion dated 6th May 2023 and declined to grant the injunctive orders that were sought therein
Key legal issues
#Whether the intended appeal involves matters of general public importance warranting certification to the Supreme Court
Certification was refused because the issues proposed for the Supreme Court mischaracterised the impugned Ruling, which struck out an interlocutory injunction application and did not strike out the appeal; the proposed questions therefore never arose in the courts below and failed the substantial-question-of-law threshold.
Applying the Steyn and Malcolm Bell guidelines, the Court found a definite disparity between the issues raised and the impugned Ruling of 22nd March 2024. The Ruling merely struck out a rule 5(2)(b) injunction motion because the consolidated suits had abated; it did not dismiss the appeal. The proposed questions of general public importance were premised on the false assertion that the appeal itself had been struck out, so they bore no relationship or relevance to the impugned decision and had not been the subject of judicial determination. Consequently the threshold for certification was not met.
Whether a temporary injunction pending appeal should issue
The injunctive relief was refused as superfluous once certification was declined.
The Court held that the temporary injunction and restraining orders sought were consequential on certification of the intended appeal. Having declined to certify, there was no basis on which to preserve the subject matter pending an appeal to the Supreme Court, and the entire application lacked merit and was dismissed with costs to the respondent.
Legal principles established
#- For certification to the Supreme Court under Article 163(4)(b), the questions of law must have arisen in the courts below and been the subject of judicial determination; issues that bear no relationship to the impugned decision cannot found certification.
- Matters of general public importance are those that raise a substantial point of law, occasion a state of uncertainty in the law or arise from contradictory precedents, or will affect a considerable number of persons in general or as litigants.
Court orders
#- 1.Certification of the intended appeal to the Supreme Court refused
- 2.Leave to appeal to the Supreme Court refused
- 3.The application for a temporary injunction pending appeal dismissed as superfluous
- 4.The application dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Section 15 of the Supreme Court Act, 2011; Rule 33(1) of the Supreme Court Rules, 2020
Relief refused
#Certification of the intended appeal to the Supreme Court
The issues sought to be raised do not arise from the impugned Ruling and are not matters of general public importance
Temporary injunction pending appeal
Rendered superfluous once certification was declined
Costs
The application is 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.
In the end, the Applicant has not satisfied us that the intended appeal involves matter(s) of general public importance so as to warrant certification to the Supreme Court.
In reality, the issues raised bear no relationship or relevance to the impugned decision, but concern extraneous allegations contrary to the guidelines enumerated for certification to the Supreme Court that, “…iii. such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination...”
In sum, the application seeking certification to the Supreme Court and issuance of a temporary injunction lacks merit and is dismissed with costs to the respondent.
Issues in the judgment
#The judgment states that the impugned Ruling of 22nd March 2024 was delivered by Asike-Mahandia, Dr. I. Laibuta and G.V. Odunga, JJ.A, but the coram of this judgment comprises Murgor, Laibuta and Ngenye-Macharia, JJ.A; only Laibuta JA appears on both benches.
The judgment inconsistently spells the lead authority as 'Hermanus Phillipus Steyn' when cited by counsel and 'Hermanus Phillip Steyn' when adopted by the court.
The judgment refers to Article 164(4) of the Constitution when quoting Mwambeja Ranching on the certification jurisdiction, which appears to be a typographical error for Article 163(4).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim v Muhaji & another (Civil Application E033 of 2024) [2025] KECA 1294 (KLR)", Case Analysis (2025). Civil Application (Certification) arising from Civil Appeal No E037 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1294/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.