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Supreme CourtOtherCivil Application 1 of 2011

Sum Model Industries Ltd v Industrial & Commercial Development Corporation

Supreme Court of Kenya
2 December 2011
Philip Kiptoo TunoiP.K. TunoiSmokin Charles WanjalaS.C. Wanjala
723 words in judgment
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The bottom line

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Appeals to Kenya's Supreme Court must first seek certification from the Court of Appeal.

What this practically means

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If you want to appeal a Court of Appeal decision to the Supreme Court on a matter of general public importance, you must first ask the Court of Appeal for permission. Filing directly with the Supreme Court is an abuse of process. The Court of Appeal knows the case best and should decide first if your issue qualifies. Only after their decision can you seek Supreme Court review.

Executive summary

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This ruling concerns three consolidated applications (Civil Application Numbers 1/2011, 2/2011, and 3/2011) seeking leave to appeal against a decision of the Court of Appeal to the Supreme Court. The Supreme Court, composed of Justices P.K. Tunoi and S.C. Wanjala, examined the proper procedure for such applications under Article 163(4)(b) of the Constitution. The Court noted that the applicant had erroneously cited general constitutional provisions and irrelevant provisions instead of Article 163(4)(b) as the basis for the application. The Court held that it is good practice for such applications to be first filed in the Court of Appeal, which is better placed to assess the facts and legal arguments and certify whether a matter of general public importance is involved. Filing directly in the Supreme Court would constitute an abuse of process. The Court also declined to invoke its special jurisdiction under section 14 of the Supreme Court Act to review the Court of Appeal's judgment, as the supporting documents did not disclose facts bringing the application within that provision. Consequently, the Court ordered that Civil Application Number 1/2011 be filed before the Court of Appeal pursuant to Article 163(4) of the Constitution, and that this order apply to the other two consolidated applications. The ruling emphasizes the procedural hierarchy and the importance of first seeking certification from the Court of Appeal before approaching the Supreme Court for leave to appeal.

Questions the Court framed

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

  1. 1.Whether the application for leave to appeal should be brought before the Supreme Court directly or first before the Court of Appeal
  2. 2.Whether the Supreme Court should invoke its special jurisdiction under section 14 of the Supreme Court Act to review the Court of Appeal's judgment

Key legal issues

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01

Whether an application for leave to appeal under Article 163(4)(b) of the Constitution should be filed first in the Court of Appeal or directly in the Supreme Court

Holding

The application should first be filed in the Court of Appeal, which is better placed to assess the facts and legal arguments and certify whether a matter of general public importance is involved.

Reasoning

The Court held that the Court of Appeal, having been seized of the matter and having assessed the facts and legal arguments, should be afforded the first opportunity to express an opinion on whether an appeal should lie to the Supreme Court. Filing directly in the Supreme Court would lead to abuse of process. The applicant may seek review of the Court of Appeal's decision under Article 163(5) if dissatisfied.

p. 3
02

Whether the Supreme Court should invoke its special jurisdiction under section 14 of the Supreme Court Act to review the Court of Appeal's judgment

Holding

The Court declined to invoke the special jurisdiction as the application did not disclose facts bringing it within the ambit of section 14.

Reasoning

The Court examined the documents in support of the application and found no facts that would justify invoking the special jurisdiction under section 14 of the Supreme Court Act. The application was therefore dismissed in this regard.

p. 3

Legal principles established

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  • Leave to appeal under Article 163(4)(b) must first be sought from the Court of Appeal.
  • The Court of Appeal is better placed to certify whether a matter involves general public importance.
  • Filing directly in the Supreme Court for leave constitutes abuse of process.
  • The Supreme Court may review the Court of Appeal's certification decision under Article 163(5).
  • Invoking the Supreme Court's special jurisdiction under section 14 of the Supreme Court Act requires specific facts.

Court orders

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  1. 1.That Civil Application Number 1/2011 be filed before the Court of Appeal pursuant to Article 163(4) of the Constitution for determination by the said Court.
  2. 2.That the foregoing Order be applied to Civil Application Numbers 2 of 2011 and 3 of 2011 on the basis of the reasons advanced in this application.

The bench

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

Philip Kiptoo Tunoi
majority

Wrote the judgment

Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya, 2010
Consolidated with
Civil Application Number 2/2011, Civil Application Number 3/2011

Relief refused

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Invocation of special jurisdiction under section 14 of the Supreme Court Act to review the Court of Appeal's judgment

The perusal of documents in support of the application has not disclosed any facts that would bring the application within the ambit of section 14 of the Act.

p. 3

Costs

No order as to costs (not mentioned in judgment)

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.

it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved.
p. 3 Procedure for leave to appeal to Supreme Court
To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to this Court in search of a certificate for leave, would lead to Abuse of the Process of Court.
p. 3 Abuse of process
That Civil Application Number 1/2011 be filed before the Court of Appeal pursuant to Article 163(4) of the Constitution for determination by the said Court.
p. 4 Final orders
That the foregoing Order be applied to Civil Application Numbers 2 of 2011 and 3 of 2011 on the basis of the reasons advanced in this application.
p. 4 Consolidation of applications

Key timeline

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2011
Applicant files three consolidated applications for leave to appeal directly to the Supreme Court.
Judgment date
Supreme Court rules applications must first go to the Court of Appeal.
After ruling
Civil Application Number 1/2011 and related cases sent to the Court of Appeal for certification.

Practical implications

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For lawyers

File leave appeals in Court of Appeal first

When seeking leave to appeal to the Supreme Court under Article 163(4)(b), always file the application in the Court of Appeal first. This ruling makes it clear that direct filing in the Supreme Court is an abuse of process. If the Court of Appeal denies certification, you can then seek review by the Supreme Court under Article 163(5).

For businesses

Plan appeals through proper channels

If your business loses a case in the Court of Appeal and wants to appeal to the Supreme Court on a matter of general public importance, instruct your lawyers to first seek certification from the Court of Appeal. Skipping this step will waste time and money, as the Supreme Court will reject a direct application.

For individuals

Know the right court for your appeal

If you believe a Court of Appeal decision affects the public and you want the Supreme Court to hear it, you must first ask the Court of Appeal for permission. Do not go straight to the Supreme Court. This ruling ensures the Court of Appeal, which knows your case, decides first whether it is important enough for the Supreme Court.

Frequently asked questions

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

First, ask the Court of Appeal for a certificate that your case involves a matter of general public importance. If they grant it, you can then appeal to the Supreme Court. If they refuse, you can ask the Supreme Court to review that decision.

Can I file an appeal directly to the Supreme Court in Kenya?+

No, not for appeals under Article 163(4)(b) of the Constitution. You must first seek certification from the Court of Appeal. Filing directly in the Supreme Court is considered an abuse of process and will be rejected.

What happens if the Court of Appeal refuses to certify my case for Supreme Court appeal in Kenya?+

You can apply to the Supreme Court for review of that refusal under Article 163(5) of the Constitution. The Supreme Court will then decide whether your case involves a matter of general public importance.

What is a matter of general public importance in Kenyan Supreme Court appeals?+

It is a legal issue that affects the public broadly, not just the parties in the case. Examples include constitutional interpretation, public policy questions, or issues with widespread impact. The Court of Appeal decides if your case meets this standard.

Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Sum Model Industries Ltd v Industrial & Commercial Development Corporation", Case Analysis (2011). Civil Application 1 of 2011. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2011/5/eng@2011-12-02

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