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Court of AppealDismissedMotion dated 6th March 2025· [2026] KECA 1105 (KLR)

Kwale International Sugar Company Ltd v Epco Builders Ltd & 2 others (Civil Application E001 of 2025) [2026] KECA 1105 (KLR)

Court of Appeal
12 June 2026
WKW. KaranjaAMA.O. MucheluleWKW. Korir
1,709 words in judgment
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The bottom line

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The Court of Appeal refused Kwale Sugar permission to take its insolvency fight to the Supreme Court, so EPCO's debt claim must first be reheard in the High Court.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal on a motion dated 6th March 2025 in which Kwale International Sugar Company Limited sought certification under Article 163(4)(b) of the Constitution to appeal to the Supreme Court against part of the Court's judgment of 7th February 2025 in insolvency proceedings brought by EPCO Builders Limited. The underlying dispute arose from a construction contract dated 12th June 2012 for a sugar factory in Kwale, in respect of which EPCO claimed a debt of approximately Kshs.405,829,019.76 and commenced insolvency proceedings. The High Court (Okwany, J.) had declined to set aside the statutory demand or strike out the petition, holding that the debt was not bona fide disputed and that defects in the statutory demand were technical. The Court of Appeal upheld the outcome but held that the superior court erred in making conclusive findings on contested facts at an interlocutory stage, and remitted the petition to be heard afresh before a different Judge. On the certification motion, the Court applied the settled principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone and held that the applicant had not demonstrated that the issues transcended the parties' circumstances or that conflicting appellate authority existed. Since the proceedings had been remitted and remained pending, a further appeal would fragment the litigation and pre-empt the superior court's jurisdiction. The motion was dismissed as premature, with each party bearing its own costs, and the insolvency petition is to proceed to hearing before the superior court.

Key legal issues

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Whether the issues framed by the applicant qualify as issues of general public importance warranting certification under Article 163(4)(b)

Holding

The application fails; the issues arise in ongoing proceedings expressly remitted to the superior court for hearing on their merits, and the proposed appeal would fragment the litigation and pre-empt matters within the superior court's jurisdiction.

Reasoning

The Court of Appeal's earlier judgment did not finally determine the substantive factual and contractual disputes; it directed that they be ventilated before the superior court. Although the framed questions may in a general sense be capable of recurrence, the applicant did not demonstrate conflicting appellate authority or uncertainty in the law requiring Supreme Court clarification at this stage. The matters remain subject to determination in pending proceedings and may be pursued through the ordinary appellate structure after final judgment.

p. 4

Legal principles established

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  • An issue of general public importance must transcend the circumstances of the parties, have a significant bearing on the public interest, and must have arisen in and been addressed by the courts below; the burden lies on the applicant to demonstrate such significance.
  • Purely factual disputes, or dissatisfaction with interlocutory determinations, do not in themselves meet the certification threshold; a proposed appeal that would fragment ongoing remitted litigation and pre-empt the superior court's jurisdiction is premature and will be refused.

Court orders

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  1. 1.The motion dated 6th March 2025 is dismissed
  2. 2.The insolvency petition shall proceed to hearing before the superior court in accordance with the Court's earlier directions
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Court of Appeal Rules, 2022Rule 41(2)
  • Court of Appeal Rules, 2022Rule 44
  • Insolvency RegulationsRegulation 77B
  • Insolvency RegulationsRegulations 16 and 17

Cases cited (1)

  • Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
    (2013) eKLR
On appeal from
High Court
Jurisdiction invoked
Article 163(4)(b) of the Constitution; Rules 41(2) and 44 of the Court of Appeal Rules, 2022

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, "Kwale International Sugar Company Ltd v Epco Builders Ltd & 2 others (Civil Application E001 of 2025) [2026] KECA 1105 (KLR)", Case Analysis (2026). Motion dated 6th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1105/eng@2026-06-12

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