Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedCivil Application 10 of 2015

Matheka v Matheka & another

Supreme Court of Kenya
13 April 2018
David Kenani MaragaD. K. MaragaJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NjokiIsaac LenaolaI. Lenaola
511 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Supreme Court dismisses appeal filed directly; must first seek certification from Court of Appeal.

What this practically means

#

The Supreme Court dismissed an application for leave to appeal because it was filed directly in the Supreme Court instead of first asking the Court of Appeal for permission. The Court explained that, under its previous decisions, anyone wanting to appeal on a matter of general public importance must start at the Court of Appeal. If the Court of Appeal refuses, the applicant can then ask the Supreme Court to review that refusal. The case also involved a private family dispute, which does not qualify as a matter of general public importance.

Executive summary

#
This was an Originating Motion by Erick Muthui Matheka seeking certification and leave to appeal to the Supreme Court on the ground that his proposed appeal raised questions of general public importance, specifically whether one is said to belong to a family as the natural and fundamental unit of society under Article 45(1) of the Constitution. The respondents opposed the application, arguing it was incurably defective as it was not a review of the Court of Appeal's refusal to certify. The Supreme Court, in a unanimous decision, dismissed the application. The Court held that, following its precedent in Koinange Investment & Development Ltd v Robert Benson Ngethe, an application for leave should first be made to the Court of Appeal, and if dissatisfied, the applicant may seek review under Article 163(5) of the Constitution. The present application was not a review and was therefore improperly before the Court. Additionally, the Court found that the core issue—whether the applicant was a survivor of the deceased—was a private family dispute, not a matter of general public importance, and the attempt to craft it as such was mischievous and an abuse of court process. Costs were awarded to the respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Originating Motion for certification and leave to appeal is properly before the Supreme Court.
  2. 2.Whether the proposed appeal raises questions of general public importance.

Key legal issues

#
01

Whether the Originating Motion for certification and leave to appeal is properly before the Supreme Court.

Holding

The application is improperly before the Supreme Court because it is not an application for review of the Court of Appeal's refusal to certify, as required by Article 163(5) and the precedent in Koinange Investment & Development Ltd v Robert Benson Ngethe.

Reasoning

The Supreme Court held that, following its decision in Koinange Investment & Development Ltd v Robert Benson Ngethe, an application for leave to appeal on grounds of general public importance should first be made to the Court of Appeal. If the Court of Appeal refuses certification, the applicant may seek review under Article 163(5) of the Constitution. The present Originating Motion was not a review application and was therefore improperly filed directly in the Supreme Court.

p. 2
02

Whether the proposed appeal raises questions of general public importance.

Holding

The core issue—whether the applicant is a survivor of the deceased—is not a matter of great public importance, and attempting to craft it as such is mischievous and an abuse of court process.

Reasoning

The Supreme Court found that the central issue in the High Court and Court of Appeal was a factual determination of whether the applicant was a survivor of George Musau Matheka (deceased). This is a private family dispute, not a question of general public importance. The attempt to frame it as a constitutional issue under Article 45(1) was rejected as mischievous and an abuse of court process.

p. 2

Legal principles established

#
  • An application for leave to appeal to the Supreme Court on grounds of general public importance should first be made to the Court of Appeal.
  • If the Court of Appeal refuses certification, the applicant may seek review under Article 163(5) of the Constitution.
  • A private family dispute does not raise a question of general public importance.
  • Attempting to frame a private dispute as a constitutional issue to gain Supreme Court access is an abuse of process.
  • Costs follow the event – the losing party pays the winning party's costs.

Court orders

#
  1. 1.The Originating Motion of application dated 25th June 2015 is hereby dismissed.
  2. 2.The respondents shall have costs thereof as costs must follow the event.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NjokiSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(5) of the Constitution; Section 23(2)(b) of the Supreme Court Act; Rule 23 of the Supreme Court Rules, 2012

Relief refused

#

Certification and grant of leave to appeal to the Supreme Court on grounds of general public importance.

The application was not a review of the Court of Appeal's refusal to certify, and the core issue was not of general public importance.

p. 2

Costs

The respondents shall have costs thereof as costs must follow the event.

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.

The Originating Motion of application dated 25th June 2015 is hereby dismissed.
p. 2 Final orders
an application for leave, as a matter of good practice, should originate in the Court of Appeal, which would be better placed to certify whether a matter is of general public importance; and if the applicant should be dissatisfied with its decision in that regard, would be at liberty to seek review under Article 163(5) of the Constitution
p. 2 Procedure for certification of general public importance
the core issue that arose for determination before the High Court and Court of Appeal to wit whether the applicant is a survivor of one George Musau Matheka (deceased) is not a matter of great public importance and an attempt at crafting it as such before this Court is clearly mischievous and an abuse of Court process.
p. 2 General public importance

Key timeline

#
2015-06-25
Applicant files Originating Motion in Supreme Court seeking leave to appeal.
Decision date not specified
Supreme Court unanimously dismisses the application as improperly filed and an abuse of process.

Practical implications

#
For lawyers

Follow correct appeal route

When seeking to appeal to the Supreme Court on grounds of general public importance, always file the initial application for certification in the Court of Appeal. Only if the Court of Appeal refuses should you file a review application under Article 163(5) in the Supreme Court. Filing directly in the Supreme Court will result in dismissal and an adverse costs order.

For businesses

Only public importance cases qualify

The Supreme Court will only hear appeals that raise questions of general public importance. Private commercial or family disputes, even if dressed up with constitutional arguments, will not meet this threshold. Businesses should exhaust all lower court remedies and ensure any Supreme Court appeal involves a matter affecting the public at large, not just the parties.

For individuals

Family disputes stay in lower courts

If you are involved in a private family dispute, such as inheritance or survivor claims, do not expect the Supreme Court to hear your case. The Court considers these matters factual and private, not of general public importance. Attempting to frame your case as a constitutional issue to get Supreme Court access may be treated as an abuse of process and lead to dismissal with costs.

Frequently asked questions

#
How do I appeal to the Supreme Court of Kenya on a matter of general public importance?+

First, apply to the Court of Appeal for certification that your case raises a question of general public importance. If the Court of Appeal refuses, you can then file a review application in the Supreme Court under Article 163(5) of the Constitution.

What is a question of general public importance in Kenya?+

It is a legal issue that affects the public at large, not just the parties in the case. Private disputes, such as family inheritance or contractual disagreements, do not qualify. The issue must have significant legal or constitutional implications beyond the specific facts.

Can I file a case directly in the Supreme Court of Kenya?+

No, not for appeals on general public importance. You must first go to the Court of Appeal. The Supreme Court will dismiss any application filed directly, as it did in this case, unless it is a review of a Court of Appeal refusal.

What happens if I file an appeal incorrectly in the Supreme Court of Kenya?+

The Supreme Court will dismiss your application as improperly filed. You may also be ordered to pay the other side's legal costs. It is important to follow the correct procedure to avoid wasting time and money.

Later judgments citing this (14)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Matheka v Matheka & another", Case Analysis (2018). Civil Application 10 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/35/eng@2018-04-13

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