[2024] KESC 32 (KLR)

Emfil Limited v Attorney General & 14 others (Application E005 of 2024) [2024] KESC 32 (KLR) (5 July 2024) (Ruling)

Neutral citation: [2024] KESC 32 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application E005 of 2024

MK Koome, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala & W Ouko, SCJJ

July 5, 2024

Between

Emfil Limited

Applicant

and

Attorney General

1st Respondent

Gazi Bay Limited

2nd Respondent

Juma Shee Mwamwindini

3rd Respondent

Shee Hamisi Mwamwindi

4th Respondent

Nshee Hussein Kenya

5th Respondent

Juma Omari Mwadziroho

6th Respondent

Nassoro Abdalla Mwachibulo

7th Respondent

Nzuri Mahali Limited

8th Respondent

Saba Mwanga Limited

9th Respondent

Maisha Mema Limited

10th Respondent

Mafaniko Limited

11th Respondent

Tamu Ndoto Limited

12th Respondent

Gazi Bay Limited

13th Respondent

Cliff View Company Limted

14th Respondent

Mwabungu Bay Limited

15th Respondent

(Being an application for review of the Court of Appeal Ruling in Mombasa Civil Application No. E032 of 2023 delivered on 25th January 2024, denying grant of certification and leave to appeal to the Supreme Court on grounds of general public importance under Article 163(4)(b) of the Constitution)

Review of a Court of Appeal decision denying certification of an intended appeal to the Supreme Court on grounds of general public importance

The applicant sought the Supreme Court's review of a Court of Appeal decision that denied certification for an appeal on grounds of general public importance under article 163(4)(b) of the Constitution. Emfil Limited contested the Court of Appeal’s ruling, which involved the striking out of parties' defences and the role of the Attorney General in representing parties who waived their right to appeal. The Supreme Court, guided by the principles in the Hermanus case, found that the applicant failed to demonstrate any issue transcending the circumstances of the matter that would bear on the public interest. The Court of Appeal's decision was upheld, and the application was dismissed with costs.

Reported by John Ribia

The applicant filed a motion seeking certification for an appeal to the Supreme Court. The motion arose after the Court of Appeal upheld an Environment and Land Court decision striking out defences in a land ownership dispute. The applicant argued that the Court of Appeal erred in reinstating the defences of parties who had waived their right to appeal and allowing the Attorney General to appeal on behalf of such parties. The applicant claimed that the dispute raised issues of public importance, particularly regarding land ownership rights and the role of the Attorney General.

Brief facts

Whether a matter about defences that were struck out in a land dispute involved issues of general public importance justifying certification for the lodging of an appeal to the Supreme Court.

Whether the Attorney General could represent parties who had waived their right to appeal.

Held

The applicant failed to demonstrate that the issues raised transcended the private interests of the parties.

The Court of Appeal did not err in reinstating the respondents' defences.

The application did not meet the threshold for certification as it lacked public interest elements.

The application for certification was dismissed. The costs of the application were awarded to the respondents.

Citations Cases Kenya Civil Aviation Authority v African Commuter Services Ltd & another (Civil Application 7 of 2015; [2018] KESC 78 (KLR)) — Followed

Phillipus, Hermanus v. Giovanni Gnecchi -Roscone (Civil Application 4 of 2012; [2013] eKLR) — Mentioned

Statutes Civil Procedure Rules, 2010 (cap 21, Sub Leg) — order 2 rule 15, 15(2) — Cited

Constitution of Kenya, 2010 — article 163(4)(b) — Interpreted

Supreme Court Act (cap 9B) — section 3A, 15, 15B , 21 — Cited

Supreme Court Rules (cap 9B, Sub Leg) — rule 33(2), (3) — Cited

AdvocatesMr. Owuor Thatcher for ApplicantMs. Lang’at for 1st RespondentMr. Asige for 4th to 7th RespondentsMr. Apollo for 8th to 13th, 15th and 17th to 20th Respondents

Ruling

Representation:Mr. Owuor Thatcher for the applicant(LJA Associates LLP)Ms. Lang’at for the 1st respondent(State Law Office)Mr. Asige for the 4th to 7th respondents(Asige Keverenge & Anyanzwa Advocates)Mr. Apollo for the 8th to 13th, 15th and 17th to 20th respondents(Apollo Muinde & Partners Advocates)No representation for the 2nd, 3rd, 14th and 16th respondents 1. Upon perusing the Notice of Motion dated 7th February 2024 and filed on 8th February 2024, pursuant to Article 163(4)(b) of the Constitution, Sections 3A, 15, 15B and 21 of the Supreme Court Act and Rule 33(2) and (3) of the Supreme Court Rules; seeking review and setting aside of the Ruling of the Court of Appeal (Nyamweya, Lesiit & Odunga, JJ.A) delivered on 25th January 2024 in Mombasa Civil Application No. E032 of 2023, declining certification of the intended appeal as one raising matters of general public importance; certification of the intended appeal against the Judgment of the Court of Appeal (Gatembu, Nyamweya & Lesiit, JJ.A) delivered on 14th April 2023 in Mombasa Civil Appeal No. 37 of 2020; certification so granted to operate as stay of execution; and costs; and

2. Upon considering the applicant’s grounds on the face of the application and affidavit sworn by Andrew Mukite Musangi on 7th February 2024, wherein it is contended that, the Court of Appeal erred in law, in; reinstating defences of parties who had waived their right of appeal; allowing the Attorney General to lodge an appeal on behalf of parties with independent representation and who had not filed notices of appeal; failing to consider that the applicant’s ownership of the suit property had been determined and affirmed by the High Court and Court of Appeal in HCCC No. 181 of 2007 and CA No. 312 of 2012 respectively; failing to take into account that the suit property was not available for allocation to the squatters; and finding that reliance on a replying affidavit filed in a concluded matter to urge a subsequent matter was res judicata, in contravention of Order 2 Rule 15 of the Civil Procedure Rules; and

3. Upon further considering the questions of general public importance proffered by the applicant, to wit; whether the striking out of parties pleadings has a bearing on public interest; whether the Court of Appeal erroneously applied the provisions of Order 2 Rule 15(2) of the Civil Procedure Rules; whether the Attorney General could represent parties who had expressly waived their right of appeal; what is the ambit of the role of the Attorney General in defending public interest; whether ownership rights conferred by a court of competent jurisdiction can be subject to re-litigation; whether a replying affidavit in a former suit can be relied on in subsequent causes to prove that the matter is res judicata; whether an outright misapplication of the law by a court raises an issue of public importance; whether competing titles to property can be issued under different registration regimes; and whether conflicting decision of a court raises an issue of public importance; and

4. Upon considering the applicant’s submissions dated 7th February 2024 and filed on 9th February 2024, restating the grounds set out above and in addition urging that, the application meets the principles for grant of certification established in Hermanus Phillipus v. Giovanni Gnecchi -Roscone, SC Application No. 4 of 2012 [2013] eKLR (Hermanus Case), and the issues raised therein transcend the litigation interests of the parties in the suit. Moreover, that the issues raised are of repeated occurrence, bearing proper conduct in the administration of justice, and are destined to continually engage the working of judicial organs. To support this assertion, the applicant relies on this Court’s decision in Kenya Civil Aviation v. African Commuter Services Ltd & another, SC Application No. 7 of 2015; [2018] eKLR; and

5. Having read and considered the 1st respondent’s submissions dated 22nd February 2024, wherein the 1st respondent urges that the application fails to meet the yardstick for grant of certification settled in the Hermanus Case, in that it has not concisely identified the elements of general public importance peculiar to the intended appeal. Furthermore, the Attorney General contends that the dispute pending before the trial court pertains to private land ownership between the applicant and the respondents; the only issue determined by the appellate court involved the striking out of parties’ defences by the trial court; and the just determination of the substantive dispute calls for the evaluation and consideration of the contested facts between the parties by the trial court as directed by the Court of Appeal; and

6. Upon noting the 4th and 7th respondents’ replying affidavit sworn on 13th March 2024 and filed on 19th March 2024, wherein the respondents join issues with the 1st respondent and also aver that the intended appeal discloses no matters of general public importance transcending the circumstances of this matter; and

7. Upon considering the 4th and 7th respondents’ submissions dated 13th March 2024 and filed on 19th March 2024, restating their grounds of opposition and reiterating that the application fails to meet the principles for certification settled in the Hermanus Case. They emphasize that the Court of Appeal was only called upon to determine whether the trial court had judiciously exercised its discretion in striking out defences by the respondents; and therefore, the applicant cannot invite this Court to determine substantive issues pending before the trial court, disguised as matters of public interest; and

8. Upon further considering the 8th to 13th, 15th and 17th to 20th respondents’ replying affidavit sworn on 28th February 2024 and filed on 4th March 2024 adopting the arguments in opposition by the other respondents as earlier summarized. Further noting the said respondents’ submissions dated 29th February 2024 and filed on 4th March 2024, to the effect that none of the matters raised by the applicant pass the test for certification laid down in the Hermanus Case but are instead mere contests between the parties; and

9. Upon reading the applicant’s submissions in rejoinder dated 7th March 2024 and filed on 11th March 2024, restating its arguments in support and further urging that the 1st respondent’s submissions were not accompanied by a replying affidavit and were therefore defective. The upshot, according to the applicant, being that the application is unopposed by the 1st respondent as well as the 2nd, 3rd, 14th and 16th respondents who had neither filed their responses nor written submissions; and

10. Cognisant of the fact that this Court has already established the guidelines upon which an intended appeal may be certified as one involving a matter of general public importance in Hermanus Phillipus Steyn v. Giovanni Gnecchi Ruscone [supra]; to the effect that:“…for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest…”

11. We now opine as follows:i.Having considered the pleadings and submissions by the parties herein, and guided by the principles established in the Hermanus Case, we find that the Motion lacks merit as the applicant has not concisely and satisfactorily identified any issue, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal’s ruling denying certification;ii.Neither has the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest;iii.The Court of Appeal only determined the justification for striking out the respondents’ defences by the Environment and Land Court, partially allowed the appeal, and remitted the matter to the trial court for determination on merit; andiv.Therefore, the applicant is mistakenly inviting this Court to determine facts in a contest between the parties, which by itself, is not a basis for granting certification to appeal to the Supreme Court.

12. Consequently, and for reasons aforesaid, we make the following Orders:i.The Notice of Motion dated 7th February 2024 and filed on 9th February 2024 is hereby dismissed.ii.The Costs of this application shall be borne by the applicant.It is so Ordered.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JULY 2024. …………………………………………………………M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT…………………………………………………P. M. MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT…………………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………………W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA