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Court of AppealDismissedCivil Appeal (Application) E246 of 2022

Ongera & 14 others v Makwae

Court of Appeal
28 November 2025
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a private land dispute reach the Supreme Court, confirming that ordinary factual disagreements don't qualify as matters of public importance.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Asike-Makhandia, H.A. Omondi and A.O. Muchelule, JJ.A) on the applicants' notice of motion dated 29th April 2025 seeking certification of an intended appeal to the Supreme Court as raising matters of general public importance under Article 163(4) of the Constitution. The underlying dispute arose in ELC No. 92 of 2021 at Nyamira, where the respondent, as administrator of two estates, sued fifteen applicants over land parcels West Mugirango/Bosamaro West/1468 and 1469, alleging fraudulent transfers using forged documents. The Environment and Land Court found the purchases fraudulent, cancelled the titles, ordered reversion to the deceased and eviction. The applicants' first appeal (Civil Appeal No. E246 of 2022) was dismissed on 21st March 2025, the Court upholding the trial court's evaluation of the evidence. On the certification application, the court applied the Supreme Court's guidelines in Herminus Phillipus Steyn v Giovanni Gnecchi-Ruscone, as reiterated in Malcolm Bell v Daniel Toroitich Arap Moi. It held that the dispute was private litigation between related parties with no bearing on public interest, raised no substantial question of law or special jurisprudential moment, and that factual contests and mere apprehension of miscarriage of justice cannot ground certification. The application was dismissed with costs to the respondent. The ruling binds lower courts on the applicable certification threshold.

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 and leave under Article 163(4)

Key legal issues

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01

Whether the intended appeal raises matters of general public importance

Holding

It does not; the dispute is a private land dispute between related parties over two parcels, and the grounds raised are factual or concern mere apprehension of miscarriage of justice

Reasoning

The court applied the Steyn guidelines. The applicants were found to have defrauded two estates of land parcels; the respondent sued as legal administrator. The issues proposed (fair trial, capacity, adverse possession) either arose as factual contests or did not transcend the case. No contradictory precedents or substantial point of law with public bearing was demonstrated.

p. 5

Legal principles established

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  • For certification under Article 163(4), the applicant must show an issue transcending the particular case with a significant bearing on the public interest; determinations of fact and mere apprehension of miscarriage of justice do not suffice

Court orders

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  1. 1.The notice of motion dated 29th April 2025 seeking certification and leave to appeal to the Supreme Court is dismissed
  2. 2.Costs of the application awarded to the respondent

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 at Kisumu
Civil Appeal No. E246 of 2022
Jurisdiction invoked
Article 163(4) of the Constitution - application for certification and leave to appeal to the Supreme Court

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 dispute was private land litigation with no bearing on public interest and no special jurisprudential moment

p. 5

Costs

Dismissed with costs to the 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.

Consequently, we decline to certify the matter. The notice of motion dated 29th April 2025 is dismissed with costs to the respondent.
p. 5Final orders - dismissal of certification application
mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court
p. 4Steyn guidelines on certification
determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
p. 5Factual disputes insufficient for certification

Issues in the judgment

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minor

Bench composition inconsistency between coram and the description of the appeal hearing

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, "Ongera & 14 others v Makwae", Case Analysis (2025). Civil Appeal (Application) E246 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2213/eng@2025-11-28

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