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Court of AppealDismissedCivil Appeal E087 of 2021 (ruling on Notice of Motion dated 29th March 2023)

Gachuhi v Njoroge (Suing as the Administrator of the Estate of NjorogeThiaru) & 2 others (Civil Appeal (Application) E087 of 2021) [2025] KECA 1360 (KLR)

Court of Appeal
25 July 2025
2,402 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a land dispute go to the Supreme Court, confirming that fact-specific cases and fresh arguments do not qualify.

What this practically means

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Executive summary

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This Court of Appeal ruling (Karanja, Gatembu Kairu and Nyamweya JJA) determined a notice of motion dated 29th March 2023 by the applicant, whose appeal in Civil Appeal E087 of 2021 had been dismissed. He sought certification and leave to appeal to the Supreme Court under Article 163(4) of the Constitution, and a stay of execution of the decree in Nairobi ELC No. 462 of 2012, which had cancelled his title to the suit property for fraud and forgery. He argued that a conveyancing practice of inserting dates in transfer documents after execution, and after the vendor's death, should not of itself render a transfer a forgery, and relied on the Supreme Court's criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone for certification. The 1st respondent opposed, contending the issues were factual and that litigation had to end. The Court applied the Steyn criteria and held that the law on sale, transfer and registration of land, and on burden of proof, is settled; that the applicant's suggested conveyancing-practice argument was never raised before the ELC or in the appeal; and that the findings below turned on the evidence adduced, so the intended appeal did not transcend the parties' dispute. On stay, the Court held that Rule 5(2)(b) of the Court of Appeal Rules confers no jurisdiction to entertain applications on the merits after judgment, following Dickson Muricho Muriuki. The application was dismissed with costs to the 1st respondent.

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 and leave under Article 163(4) of the Constitution
  2. 2.Whether the Court has jurisdiction to grant a stay of execution of the ELC decree pending the intended appeal to the Supreme Court

Key legal issues

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01

Whether the intended appeal raises a matter of general public importance under Article 163(4)

Holding

It does not; the questions are fact-specific and the alleged conveyancing practice was not raised or determined below.

Reasoning

Applying the Steyn criteria, the Court held the law on sale, transfer and registration of land and on the burden of proof is settled. The alleged conveyancing practice of inserting dates after signing was never raised in the ELC or in the appeal, so the Court could not make a finding on it. Findings below rested on the evidence adduced, so the intended appeal does not transcend the parties' dispute.

p. 4
02

Whether the Court can grant stay of execution pending the intended Supreme Court appeal

Holding

It cannot; Rule 5(2)(b) does not confer such jurisdiction after judgment.

Reasoning

The Court adopted its prior holding in Dickson Muricho Muriuki v Timothy Kagondu Muruiki that Rule 5(2)(b) applies only to interlocutory applications pending hearing and determination of a main appeal before the Court of Appeal, and does not extend to applications touching the merits of a suit after judgment, such as one pending a further appeal to the Supreme Court.

p. 5

Legal principles established

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  • Rule 5(2)(b) of the Court of Appeal Rules confers power to hear interlocutory applications pending the hearing and determination of a main appeal before the Court of Appeal, and does not confer power to entertain applications concerning the merits of a suit after judgment, including pending a further appeal to the Supreme Court.
  • A matter qualifies for certification as one of general public importance only where its impact and consequences are substantial, broad-based, transcending the litigation-interests of the parties and bearing upon the public interest, and the intending appellant bears the burden of demonstrating this.
  • An issue of law cannot form the basis of a certification application unless it arose in the courts below and was the subject of judicial determination.

Court orders

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  1. 1.The applicant's Notice of Motion dated 29th March 2023 is dismissed with costs to the 1st respondent

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, Nairobi
Nairobi ELC No. 462 of 2012
Jurisdiction invoked
Article 163(4) of the Constitution; Rule 5(2)(b) of the Court of Appeal Rules considered on the stay prayer

Relief refused

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Certification/leave to appeal to the Supreme Court

The intended appeal does not raise a matter of general public importance; the issues are fact-specific and were not raised below

p. 4

Stay of execution of the decree in Nairobi ELC No. 462 of 2012

Rule 5(2)(b) does not confer power to grant stay pending an appeal to the Supreme Court after judgment

p. 5

Costs

The application is dismissed with costs to the 1st respondent

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.

The applicant's Notice of Motion application of 29th March 2023 is accordingly found not to have merit, and is dismissed with costs to the 1st respondent.
p. 5Final orders - dismissal of the application
this Court has no jurisdiction to grant such an order under Rule 5(2)(b) of the Court of Appeal Rules, which is the operative law.
p. 5Absence of jurisdiction to grant stay pending Supreme Court appeal
the issues and question raised by the applicant in our view do not qualify as substantial questions of law or matters of general public importance, nor are they capable of transcending the dispute between the parties in this particular case.
p. 4Certification for appeal to the Supreme Court
the applicant did not indicate that this particular argument or issue was raised in the ELC or during the hearing of the appeal in this Court for consideration, and having not been a subject of the impugned decision by this Court, we cannot purport to make a finding on this practice one way or another at this stage.
p. 4New issues not raised below cannot ground certification

Issues in the judgment

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minor

Malformed quotation from the impugned judgment: paragraph 16 is empty and the quoted passage begins mid-way in paragraph 17, leaving '22.' as an orphaned paragraph marker.

minor

Application was 'lodged... on 29th March 2023' but the supporting affidavit is 'deponed to on 23rd March 2023', i.e. the affidavit predates the application it supports.

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, "Gachuhi v Njoroge (Suing as the Administrator of the Estate of NjorogeThiaru) & 2 others (Civil Appeal (Application) E087 of 2021) [2025] KECA 1360 (KLR)", Case Analysis (2025). Civil Appeal E087 of 2021 (ruling on Notice of Motion dated 29th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1360/eng@2025-07-25

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