https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1099

Kirundi v Karanja & 4 others (Civil Application 6 of 2016) [2026] KECA 1099 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1099 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application 6 of 2016 F Tuiyott, MN Nduma & P Lilan, JJA June 12, 2026 Between Geoffrey Chege Kirundi Applicant and Rose Wakanyi Karanja 1st Respondent Grace Wangari Karanja 2nd Respondent Kenneth Ndichu Karanja 3rd Respondent William Muigai Karanja (As legal administrators of the Estate of the Late Walter Karanja Muigai) 4th Respondent and Lucy Wamaitha Chegeintere Interested Party (Being an application for leave to Appeal to the Supreme Court of Kenya from the judgment and orders of the Court of Appeal at Nairobi (Warsame, Mwilu & Sichale JJ.A.) dated and delivered on 29th day of July 2016 Civil Appeal 172 of 2010 ) Ruling 1.Before this Court is a Notice of Motion dated 6th October 2016 brought pursuant to Article 163(4)(b) of the Constitution, section 15 of the Supreme Court Act, 2011, sections 3A and 3B of the Appellate Jurisdiction Act, and rules 5(2)(b) and 42 of the Court of Appeal Rules, 2010. Through the application, the applicant principally seeks certification that the intended appeal involves matters of general public importance and leave to appeal to the Supreme Court against the judgment of this Court delivered on 29th July 2016 in Civil Appeal No. 172 of 2010. He also seeks a stay of execution of the said judgment pending the intended appeal. 2.This application shares a common factual and procedural background with Civil Application No. Sup. 5 of 2016. The two applications arise from the same judgment of this Court delivered on 29th July 2016 in Civil Appeal No. 172 of 2010 and are rooted in the same transaction and litigation history. It is pertinent to note that Geoffrey Chege Kirundi, the applicant herein, is the interested party in Sup. 5 of 2016, while Lucy Wamaitha Chege, the interested party herein, is the applicant in that matter. The respondents are the same in both applications. In view of the substantial overlap between the two matters, and to avoid unnecessary repetition, we shall set out only an abridged account of the background relevant to the present application. 3.The dispute giving rise to this application concerned L.R. No. 10090/23, a 47-acre parcel of agricultural land situated in Juja, Kiambu County (the suit property) and originally owned by the late Walter Karanja Muigai (the deceased). Prior to the transaction that forms the subject of these proceedings, the deceased had entered into a sale agreement with Mr. and Mrs. Kirika (the Kirikas). That transaction collapsed and gave rise to protracted litigation between the parties, culminating in the dismissal of the Kirikas' claim. While that litigation was pending, the deceased entered into a further sale agreement dated 26th October 1990 with Geoffrey Chege Kirundi (the applicant) and Lucy Wamaitha Chege (the interested party), husband and wife, for the purchase of the suit property. Following the death of the deceased in 1996, disputes arose regarding the validity and enforceability of the 1990 transaction, culminating in succession proceedings and related suits which were subsequently consolidated and determined by Rawal, J. (as she then was) in favour of the applicant and the interested party. 4.Aggrieved by that decision, the respondents lodged Civil Appeal No. 172 of 2010. In a judgment delivered on 29th July 2016, this Court (Warsame, Mwilu, & Sichale, JJ.A.) allowed the appeal, holding, inter alia, that the transaction offended section 46 of the Advocates Act, violated the doctrine of lis pendens, and lacked a valid Land Control Board consent. The Court consequently held that the transaction was null and void, set aside the decision of Rawal, J. in its entirety, and allowed the appeal with costs. 5.The applicant, through the present application, seeks certification and leave to appeal to the Supreme Court against the judgment of this Court delivered on 29th July 2016. 6.In the motion and the supporting affidavit, the applicant contends that the judgment of this Court raises substantial questions of law and matters of general public importance warranting consideration by the Supreme Court. He faults this Court's interpretation and application of section 46 of the Advocates Act, including its effect on transactions involving an advocate and his spouse, the doctrine of champerty, the doctrine of lis pendens, the doctrine of estoppel, the validity of the Land Control Board consent, and the legality of the conditional sale agreement entered into between himself, the interested party and the deceased. He further contends that this Court wrongly invalidated proprietary rights which had crystallized following the judgment of the High Court and the subsequent registration of the suit property in favour of himself and the interested party. 7.The applicant further contends that in the impugned judgment, this Court misapprehended the scope and effect of the doctrine of lis pendens by treating the transaction as void notwithstanding that, in his view, no transfer was effected during the pendency of the Kirikas litigation. According to the applicant, the agreement merely created contingent rights whose performance became enforceable upon the conclusion of the earlier litigation. He maintains that the doctrine did not prohibit the parties from obtaining Land Control Board consent and that the Court failed to appreciate the distinction between the execution of a sale agreement and the eventual transfer of title. He therefore contends that the intended appeal raises an important question as to whether the doctrine of lis pendens merely renders subsequent dealings in property voidable or whether it operates to invalidate transaction ab initio, as well as the extent to which the doctrine applies where no transfer is effected during the pendency of litigation. 8.The applicant also challenges this Court's findings regarding consent of the Land Control Board . He contends that this Court failed to appreciate the effect of the High Court's jurisdiction under section 8 of the Land Control Act and wrongly interfered with the exercise of that jurisdiction by Rawal, J. He maintains that the consent obtained on 16th December 1993 was valid and that the issues arising from the interpretation of the Land Control Act and the powers of the High Court raise important questions requiring authoritative determination by the Supreme Court. In particular, he contends that the intended appeal raises questions regarding the proper recourse available for challenging decisions of a Land Control Board, the extent of the High Court's powers under section 8 of the Land Control Act, and whether a court may inquire into the validity of the process leading to the grant of consent outside the framework of judicial review proceedings. 9.The applicant further contends that the judgment raises important questions concerning the application of section 46 of the Advocates Act and the doctrine of champerty. He contends that this Court improperly invoked the said provision and doctrine notwithstanding the absence of any evidence that he acted dishonestly, exploited the deceased, or engaged in professional misconduct. In his view, the decision raises broader questions regarding the extent to which advocates may engage in commercial transactions with their clients, the proper interpretation of section 46 of the Advocates Act, the applicability of the doctrine of champerty to ordinary commercial transactions involving advocates and clients, and the extent to which those principles should be construed in light of contemporary constitutional values and commercial realities. 10.The applicant additionally contends that the impugned judgment implicates constitutional issues relating to property rights, fair administrative action, access to justice and the protection of vested proprietary interests. He contends that this Court failed to accord sufficient weight to the fact that the suit property had been transferred and registered in the names of himself and the interested party pursuant to orders of the High Court and was subsequently transferred to third parties.According to the applicant, the impugned decision creates uncertainty regarding the security of title, the finality of litigation and the protection afforded to parties who acquire and deal with property pursuant to court orders. He therefore maintains that the intended appeal raises broader questions concerning the legal consequences of setting aside transactions and registrations effected pursuant to valid court orders and the protection available to persons who acquire proprietary rights in reliance on such orders. 11.A substantial aspect of the applicant's complaint concerns the treatment of the interested party's rights. He contends that this Court failed to recognize that Lucy Wamaitha Chege possessed distinct and independent proprietary rights arising from the transaction and instead treated her interests as inseparable from his own. He asserts that the intended appeal raises important questions concerning the protection of independently acquired proprietary interests within marriage, the extent to which the rights of one spouse may be affected by legal objections directed at the other spouse, and whether a spouse who was not an advocate and was not involved in the impugned conduct may nonetheless be deprived of proprietary rights acquired under the same transaction. 12.The applicant further contends that the impugned judgment failed to appreciate the legal impediment affecting completion of the transaction during the pendency of the Kirikas litigation.According to the applicant, the deceased was legally constrained from completing the transfer while the earlier proceedings remained unresolved and this circumstance justified the timing of the consent of the Land Control Board and the subsequent steps taken to complete the transaction. He maintains that the recognition and legal consequences of such an impediment raise novel questions of law requiring clarification by the Supreme Court, including whether pending litigation may constitute a legal impediment capable of suspending the performance of contractual obligations or affecting the computation of statutory timelines. 13.The applicant further seeks a stay of execution of the impugned judgment pending the intended appeal to the Supreme Court. He contends that unless execution is restrained, the respondents may take steps to enforce the judgment and alter the status of the suit property, thereby rendering the intended appeal nugatory. According to the applicant, the impugned judgment affects proprietary interests which have subsisted for many years and raises issues of considerable public importance. He therefore urges this Court to preserve the status quo pending the determination of the intended appeal in order to avert what he describes as a substantial miscarriage of justice. 14.On the basis of the foregoing matters, the applicant contends that the intended appeal raises substantial questions touching on the interpretation of section 46 of the Advocates Act, the doctrine of lis pendens, estoppel, the Land Control Act, proprietary rights, matrimonial and spousal interests in property, the finality of litigation, and the protection of rights acquired pursuant to court orders. He therefore urges the Court to certify the matter as one involving issues of general public importance, grant leave to appeal to the Supreme Court, and stay execution of the judgment pending the determination of the intended appeal. 15.The application is opposed by the respondents vide a replying affidavit sworn by William Muigai Karanja on his own behalf and on behalf of the other administrators of the estate of the deceased. He depones from the onset that the application is incompetent, misconceived and devoid of merit as it neither raises issues of constitutional interpretation nor matters of general public importance warranting certification and leave to appeal to the Supreme Court. He avers that the dispute concerns competing proprietary claims between private parties over a private parcel of land and that this Court merely restored the suit property to the estate of the deceased. He therefore contends that the issues sought to be escalated to the Supreme Court do not transcend the interests of the parties to the litigation. 16.The deponent further contends that the applicant and the interested party are improperly seeking to re-litigate matters that were conclusively determined by this Court. He reiterates that this application amounts to an abuse of the court process and does not satisfy the constitutional and statutory threshold for certification. 17.With regard to the specific grounds advanced by the applicant, the deponent maintains that no novel or unsettled constitutional questions arise from the judgment of this Court. He contends that the issues relating to section 46 of the Advocates Act, the doctrine of lis pendens, and the validity of the consent of the Land Control Board were fully canvassed and determined in accordance with settled legal principles and do not warrant further consideration by the Supreme Court. 18.The deponent further avers that the applicant and the interested party have not approached the Court with clean hands. In that regard, he alludes to a series of transactions involving the suit property, including arrangements with third parties and subsequent transfers effected after the judgment of the High Court, which, in his view, demonstrate a deliberate attempt to defeat the interests of the estate and to place the property beyond the reach of the respondents. 19.The deponent also disputes the applicant's assertion that he and the interested party were ever in possession of the suit property and maintains that possession remained with the beneficiaries of the deceased's estate. He contends that the applicant has failed to demonstrate any constitutional violation or any issue of public importance arising from the judgment of this Court. 20.In conclusion, the deponent avers that the intended appeals do not raise issues deserving the attention of the Supreme Court and urges the Court to dismiss the application with costs. 21.At the hearing of this application, learned counsel Ms. Mwangi appeared for the applicant while learned counsel Mr. Keffa was present for the respondents. Highlighting the applicant's written submissions dated 19th February 2026, Ms. Mwangi submitted that the intended appeal satisfies the threshold for certification under Article 163(4)(b) of the Constitution as it raises substantial questions of law and matters of general public importance whose determination transcends the interests of the parties. Relying on Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR, counsel submitted that the intended appeal raises issues of constitutional and jurisprudential uncertainty affecting land transactions, property rights and the development of the law. 22.Counsel contended that the first issue warranting consideration by the Supreme Court concerns the relationship between the Land Control Act and equitable doctrines. She submitted that this Court's finding that equity cannot be of any help in the face of statutory invalidity under the Land Control Act conflicts with the later decision of this Court in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, where the Court held that equitable doctrines such as constructive trust and proprietary estoppel may, in appropriate circumstances, be invoked notwithstanding the absence of Land Control Board consent. According to counsel, the impugned judgment has generated uncertainty as to whether section 6 of the Land Control Act operates as an absolute bar to all claims arising from void transactions or whether equitable interests may nevertheless survive. She contended that the issue has significant implications for land transactions and therefore warrants authoritative resolution by the Supreme Court. 23.Counsel further submitted that the intended appeal raises important questions regarding the scope and application of the doctrine of lis pendens. Referring to the decision of this Court in Natalia Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR, she contended that the doctrine does not necessarily invalidate transactions undertaken during the pendency of litigation but instead renders purchasers bound by the outcome of the suit. Counsel maintained that this Court failed to appreciate the distinction between a transaction undertaken during litigation and the ultimate consequences of such a transaction upon determination of the suit. She further relied on Co-operative Bank of Kenya Limited v Patrick Kang'ethe Njuguna & 5 Others [2017] KECA 79 (KLR) in support of the proposition that the doctrine should not be interpreted mechanistically or in a manner that undermines constitutional values, commercial certainty and property rights. According to counsel, clarification by the Supreme Court is necessary as to whether the doctrine automatically invalidates transactions entered into during pending litigation or merely subjects them to the eventual outcome of the proceedings. 24.On the question of the doctrine of champerty and section 46 of the Advocates Act, counsel submitted that the intended appeal raises a substantial constitutional issue regarding the continued application of pre-constitutional common law doctrines in the post-2010 constitutional order. Invoking clause 7 of the Sixth Schedule to the Constitution, she contended that section 46 of the Advocates Act must be interpreted in a manner consistent with constitutional values of equity, substantive justice and access to justice. Counsel contended that the impugned judgment adopted an unduly rigid approach by treating any acquisition of an interest in property by an advocate during litigation as automatically void. She further submitted that comparative jurisprudence from jurisdictions such as the United Kingdom, Australia, Canada, South Africa, Singapore and Hong Kong demonstrates a shift away from absolute prohibitions towards an approach centered on fairness, absence of exploitation and informed consent. According to counsel, the Supreme Court should determine whether the common law doctrine of champerty, as reflected in section 46 of the Advocates Act, should continue to be applied mechanically or be adapted to conform to the Constitution. 25.Counsel further contended that the appeal raises broader questions concerning the interaction between common law doctrines, equitable principles and constitutional values. She submitted that uncertainty presently exists regarding the scope of the doctrine of lis pendens, the applicability of equitable doctrines such as constructive trust and proprietary estoppel to transactions rendered void under the Land Control Act, the prevention of unjust enrichment, and the proper interpretation of section 46 of the Advocates Act under Article 259 of the Constitution. In her view, those questions are not confined to the present dispute but have significant implications for land transactions, access to justice and the development of Kenya's post-2010 constitutional jurisprudence. Counsel therefore urged this Court to certify the intended appeal as one involving matters of general public importance and grant leave to appeal to the Supreme Court. 26.On his part, counsel Mr. Keffa opposing the application submitted that the issues raised by the applicant were neither novel nor matters of general public importance. Counsel contended that the present application substantially mirrored the issues previously raised by an entity known as Everton Holdings Limited in related proceedings and that both this Court and the Supreme Court had already determined that those issues did not satisfy the threshold for certification. According to counsel, the applicant was merely repackaging arguments that had been unsuccessfully advanced in earlier litigation concerning the same property and transaction. 27.Counsel submitted that the impugned judgment comprehensively addressed the questions relating to section 46 of the Advocates Act, the doctrine of lis pendens, the validity of the consent of the Land Control Board and the legality of the transaction through which the applicant claimed title to the suit property. In his view, those issues had been conclusively settled by existing precedent and did not raise any substantial point of law requiring further consideration by the Supreme Court. He therefore urged the Court to find that the applicant had failed to demonstrate the existence of any matter transcending the interests of the parties or bearing significantly upon the public interest. 28.Counsel further relied on the decision of the Supreme Court Everton Coal Enterprises Limited v Karanja & 5 others [2023] KESC 98 (KLR) and contended that the Supreme Court had similarly declined to certify issues arising from the same dispute for further appeal. According to counsel, both this Court and the Supreme Court had recognized that the various parties advancing claims to the suit property, including the applicant, the interested party and Everton Holdings Limited, were effectively pursuing the same proprietary interest through different proceedings. He contended that the present application represented no more than an attempt to re-litigate issues that had already been conclusively determined and to obtain, through a different procedural route, what the courts had previously declined to grant. 29.Counsel also submitted that several courts had consistently reached the same conclusion regarding the applicant's claim to the suit property. He referred to decisions of this Court, the High Court, the Environment and Land Court and the Supreme Court, all of which, according to him, had found that the applicant and those claiming through him could not lawfully acquire title to the suit property. In those circumstances, counsel argued that the principles of finality in litigation demanded that the dispute be brought to an end rather than being subjected to further rounds of appellate proceedings. 30.On the substantive issues raised by the applicant, counsel maintained that the relevant legal principles were prescribed by statute and had been correctly applied in the impugned judgment. He submitted that the transaction in question offended express provisions of the law and that the applicant could not invoke equitable principles to cure or validate an illegality. According to counsel, both this Court and other courts had already considered and rejected attempts to rely on equity to overcome the statutory defects affecting the transaction. 31.Counsel further pointed out that the present application had been filed outside the prescribed timelines and urged this Court to take that factor into account. He maintained that the application disclosed no issue of general public importance and that the applicant was merely seeking a further opportunity to challenge findings that had repeatedly been upheld by different courts. Counsel therefore urged this Court to dismiss the application in its entirety and bring finality to a dispute that had been litigated for many years. 32.We have carefully considered the application, the affidavits on record, the rival submissions by learned counsel, the authorities cited and the applicable law. 33.Before considering whether the intended appeal raises a matter of general public importance within the meaning of Article 163(4)(b) of the Constitution, we deem it necessary to address a preliminary issue arising from the timing of the application. As in Civil Application No. Sup. 5 of 2016, which arises from the same judgment and substantially the same factual background, the competency of the application under rule 40 of the Court of Appeal Rules, 2010 falls for consideration. Under that rule, where no appeal lies unless the superior court certifies that a point of law of general public importance is involved, an application for such certification was to be made within 14days of the decision. 34.In the present case, the judgment sought to be appealed against was delivered on 29th July 2016 whereas the present application was filed on 6th October 2016, well outside the period prescribed by rule 40 . It is also noteworthy that no application for extension of time under rule 4 of the Rules of this Court was made. In Njowamu Construction Company Ltd & Another v Samuel Ngige Kiarie, Civil Application Sup. No. 20 of 2019, this Court held that an application filed outside the time prescribed, and without any application for enlargement of time, was incompetent. A similar approach was adopted in Alice Nduta Mburu & 5 Others v Barclays Bank of Kenya Limited, Civil Application Sup. No. 22 of 2019. 35.The foregoing reasoning notwithstanding , we are mindful of the reference in the said rule 40 to “ superior court” thus inviting debate as to its applicability to certifications at superior court stage vis a vis certification by this court to the Supreme Court on matters of general public importance . But with the ends of judtice in mind , we need not say more on this aspect , preferring instead to focus on the substantive question before us in this application . 36.We bear in mind the age of this litigation, the arguments addressed to us on the substantive question of certification, and the need to bring finality to a dispute that has engaged the courts for decades, we shall nonetheless consider whether, assuming the application was properly before us, the applicant has satisfied the threshold for certification under Article 163(4)(b) of the Constitution. 37.Article 163(4)(b) of the Constitution permits an appeal to the Supreme Court where either the Supreme Court or this Court certifies that a matter of general public importance is involved. The applicable principles are now settled. In Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra), the Supreme Court held that an applicant must demonstrate that the issue sought to be canvassed transcends the circumstances of the particular case, bears significantly upon the public interest, and raises a substantial point of law whose determination will have consequences beyond the parties before the Court. 38.Against that backdrop, we now turn to the issues identified by the applicant as warranting certification. The applicant contends that the intended appeal raises important questions concerning the doctrines of lis pendens and champerty, the interpretation of section 46 of the Advocates Act, the Land Control Act, equitable principles, vested proprietary rights and the protection of transactions undertaken pursuant to court orders. Indeed, these are important areas of law. The question, however, is whether the issues arising in the present matter satisfy the constitutional threshold for certification. 39.Having carefully examined the judgment sought to be appealed from, we are not persuaded that they do. From our perusal of the impugned judgment, it is clear to us beyond any peradventure that the appeal before this Court was determined on the basis of settled legal principles relating to section 46 of the Advocates Act, the doctrine of lis pendens and the requirements of the Land Control Act. The applicant's grievance is essentially that those principles were wrongly applied to the facts of his case. That complaint, however, is in effect only questioning the correctness of the judgment from his standpoint rather than the existence of any issue of general public importance. 40.We are equally not persuaded that the applicant has demonstrated any uncertainty, inconsistency or jurisprudential gap in the law concerning the doctrine of lis pendens. The applicant's contention that the doctrine ought not to have been applied to invalidate the transaction is, in substance, an invitation to revisit the conclusions reached by this Court. Certification under Article 163(4)(b) is not intended to provide a further avenue for challenging the application of settled legal principles to particular facts. 41.The same may be said of the arguments founded upon section 46 of the Advocates Act and the doctrine of champerty. While the applicant urges that those principles ought to be reconsidered in light of constitutional values and contemporary commercial realities, the mere assertion that an established doctrine should be revisited does not, without more, warrant certification. The applicant has not demonstrated that the impugned judgment raises a substantial question of law whose determination transcends the interests of the parties and bears significantly upon the public interest. 42.In addition, we are not persuaded that the issues concerning the validity of a consent of the Land Control Board, the applicability of equitable doctrines, vested proprietary rights, or the position of the interested party as a spouse and co- purchaser raise any novel or unsettled question of law requiring the intervention of the Supreme Court. Those matters were considered and determined within the factual matrix of the dispute before this Court. The applicant's dissatisfaction with the conclusions reached does not, without more, elevate the dispute into a matter of general public importance. 43.We are also alive to the fact that issues arising from the same transaction and dispute have previously engaged both this Court and the Supreme Court. In Everton Coal Enterprises Limited v Rose Wakanyi Karanja & 5 Others (supra), the Supreme Court declined to certify issues arising from the same dispute for further appellate consideration. Although that decision arose in a different procedural context, it nonetheless lends support to the view that the issues emanating from this long-running dispute remain closely intertwined with the particular circumstances of the parties. Put differently, the issues do not transcend the particular circumstances of the parties. 44.In our view, what the applicant seeks through this application is, in substance, a reconsideration of this Court's conclusions regarding the effect of section 46 of the Advocates Act, the doctrine of lis pendens, the validity of the Land Control Board consent, the applicability of equitable principles and the legal consequences flowing therefrom. Those issues were fully canvassed and determined in the judgment sought to be appealed. We reiterate that certification under Article 163(4)(b) is not intended to afford litigants a second bite at the cherry or a further opportunity to challenge findings reached through the application of settled legal principles to the facts of a particular case. The applicant has equally not demonstrated any uncertainty, inconsistency, or jurisprudential gap in the law requiring clarification by the Supreme Court. 45.In the end, we are not satisfied that the applicant has demonstrated that the intended appeal raises any issue whose impact and consequences transcend the interests of the parties or bear significantly upon the public interest. The application for certification and leave to appeal to the Supreme Court therefore fails. 46.As regards the applicant's prayer for a stay of execution of the impugned judgment pending the intended appeal, having rendered its final judgment in Civil Appeal No. 172 of 2010, this Court became functus officio save in the limited circumstances recognized by law. In Dickson Muricho Muriuki v Timothy Kagondu Muriuki & 6 Others [2013] eKLR, this Court held that once it has delivered its final judgment, it lacks jurisdiction to grant a stay pending an intended appeal to the Supreme Court. Accordingly, and quite apart from our finding on certification, we lack jurisdiction to entertain the prayer for stay. 47.Consequently, the Notice of Motion dated 6th October 2016 is unmerited and is hereby dismissed in its entirety with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026F. TUIYOTT………………………JUDGE OF APPEALNDUMA NDERI…………………………JUDGE OF APPEALPAUL LILAN……………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR