https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1142

Kimani (Suing as the legal representative of the Estate of John Kimani Munyaka) & another v Wainaina (Civil Appeal (Application) 11 of 2020) [2026] KECA 1142 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1142 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) 11 of 2020 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between Stephen Ngigi Kimani (suing as the legal representative of the Estate of John Kimani Munyaka) 1st Applicant Stephen Kimani Gachuri 2nd Applicant and Henry Mwangi Wainaina Respondent (An Application for leave to appeal to the Supreme Court against the judgment of the Court of Appeal at Nakuru (Warsame, Mativo & Gachoka JJ.A.) dated 21st October, 2025 in Civil Appeal No. 11 of 2020 Environment & Land Case 20 of 2017 ) Ruling 1.Stephen Ngigi Kimani (Suing as the legal representative of the Estate of John Kimani Munyaka-deceased) and Stephen Kimani Gachuri (the applicants) are aggrieved by the judgment of this Court delivered on 21st October 2025 in Kimani (Suing as the Legal Representative of the Estate of John Kimani Munyaka) & Ano. vs. Wainaina [2025] KECA 1679 (KLR) - Civil Appeal 11 of 2020. In the said judgment, this Court (Warsame, (as he then was), Mativo & Gachoka JJ.A.) dismissed their appeal in its entirety against the judgment and decree of the Environment & Land Court (ELC) at Nyahururu (Oundo, J.) dated 17th December 2019 issued in ELC Suit No. 20 of 2017. 2.The dispute before the ELC was mainly who between the applicants and the respondent lawfully owned land parcel number Nyandarua/Melangine/515 (the suit property). Both the applicants and the respondent were claiming ownership of the said land. During the trial before the ELC, both parties marshalled evidence in support of their respective positions. At the conclusion of the trial, Oundo, J. in a judgment dated 17th December 2019 found that the respondent was the lawful registered proprietor of the said land and ordered the applicants to vacate the land within 60 days from the date of the judgment, in default, eviction orders would be issued against them. The learned judge also issued a permanent injunction against the applicants retraining them from inter alia interfering with the said land. The Court also ordered the applicants to pay to the respondent damages for trespass in the sum of Kshs.100,000/= plus costs of this suit. 3.Aggrieved by the said verdict, the applicants appealed to this Court in Civil Appeal No. 11 of 2020, mainly faulting the learned judge for:(a)finding that Mumbi Kiboi had no title to pass to them when she entered into the sale agreement with John Kimani Munyaka on 16th April 1969,(b)finding that the 1st respondent was the legal and rightful owner of the suit property;(c)finding that their occupation constituted trespass;(d)finding that the respondent proved his case on a balance of probabilities. 4.In support of their appeal, the appellants’ submitted that:(a)the trial court disregarded crucial evidence including receipts for payment of the purchase price, the application for consent of the Land Control Board;(b)the internal correspondence within the land adjudication and settlement department acknowledging that the transfer to Kimani Munyaka was valid; and(c)the certificate of consent by Settlement Fund Trustee and transfer forms.They contended that their documentary evidence and the sale agreement dated 16th April 1969 adequately proved that John Kimani Munyaka had a valid claim to the suit property as required under Section 97 (1) of the Evidence Act, which mandates that property dispositions be reduced into writing. 5.Citing Willy Kimutai vs. Michael Kibet [2018] KECA 573 (KLR) and Macharia Mwangi Maina & 87 Others vs. Davidson Mwangi Kagiri, [2014] eKLR, the applicants emphasized that lack of Land Control Board consent does not automatically void equitable remedies. Further, controlled transactions that lacked the requisite consent under the Land Control Act could still be enforced under the equitable doctrine of constructive trust, especially in the circumstances of this case where parties had executed a sale agreement, the purchaser had paid the full purchase price and was in actual occupation and the charge from the Settlement Fund Trustee was transferred to John Kimani Munyaka. 6.The applicants maintained that a constructive trust in favour of John Kimani had been created because the death of both parties prevented the transfer from being effected. They argued that Kiboi Ngang’a Waweru, knowing of the sale transaction improperly registered himself as the owner of the suit property and transferred it to the respondent. Therefore, the learned judge made a wrong finding by concluding that the respondent was registered as proprietor by virtue of the law. 7.They maintained they were not trespassers, urging that John Kimani Munyaka legitimately acquired rights to the property through the 1969 sale agreement and he put the 2nd applicant in occupation, but the vendor died before the registration of their interests could be completed. Therefore, they were not trespassers because they were innocent purchasers for value who validly purchased the land. 8.On the other hand the respondent’s case was that he legitimately acquitted the land through a documented process which he detailed as follows:(a)he purchased the land from Kiboi Nganga Waweru in 1987;(b)he obtained Land Control Board consent;(c)he paid all the required fees including settlement of outstanding debts to the Settlement Fund Trustee;(d)he completed all statutory requirements for registration;(e)the land was properly subdivided, with Plot No. 515 being registered in his name on 28th March 2008 after all legal impediments were resolved, including a case filed by John Kimani Munyaka that was dismissed for want of prosecution.The respondent maintained that unlike the applicants, he complied with all the legal requirements; therefore, his title can only be defeated by proof of fraud, illegality or corruption-none of which was established. Lastly, the respondent maintained that Mumbi Kiboi had no valid title to transfer to John Kimani Munyaka in 1969. He argued that the applicants failed to produce credible evidence challenging his title and urged this Court to dismiss the appeal. 9.In the ensuing judgment dated 21st October 2025, this Court (Warsame (as he then was), Mativo & Gachoka JJ. A) stated:“26.From the title provided on record, it is discernable that Nyandarua/Melangine/19 (the original undivided plot) was registered to Settlement Fund Trustee on 1st August 1986; this was the first entry. The second entry shows that on 16th June 1987, Settlement Fund Trustee discharged its interest to the suit property and transferred the original land to Kiboi Ng’ang’a who was issued with a land certificate, while the third entry indicates that the land was subsequently subdivided into plots 514 and 515, with Kiboi Nganga Waweru registered as proprietor of both parcels and the title was closed.27.The green card produced for Nyandarua/Melangine/515 by PW3 (the Land Registrar) provides an unambiguous documentary history of the property. The entries on this official register tell a compelling story which we summarise below: Entry No. Date Nature of entry Details 1 13.6.89 Kiboi Ng'ang'a Registration of Kiboi Nganga Waweru as proprietor following subdivision of Plot 19 2 10.7.89 Caution John Kimani Munyaka registers caution claiming purchaser's interest (less than one month after Entry 1) 3 19.4.95 Restriction Director of Land Settlement places restriction Ref No. LD/218/19/80 4 19.3.08 Order Court order removing Entry No. 2 (caution) via Nakuru Case No. 229/1998 5 27.3.08 Removal Removal of Entry No. 3 (restriction) vide a letter Ref No. DSO/NYA/5706/28/VOL.1 from the District Land Adjudication and Settlement Office (DLASO) 6 27.3.08 Transfer Transfer to Henry Mwangi Wainaina (the respondent) 7 28.3.08 Title Deed Issuance of title deed to Henry Mwangi Wainaina 28.This documentary evidence establishes three irrefutable facts that weaken the appellants' case: first is a temporal impossibility where Mumbi Kiboi purported to sell the land in 1969, but the land was clearly not registered until 1986, a gap of seventeen (17) years during which no registrable interest existed.29.Second, is her legal incapacity. Even when the land was eventually registered to the Settlement Fund Trustee in 1986, Mumbi Kiboi was not the registered proprietor; consequently, she possessed no legal capacity to transfer registered land. It is undisputed that Mumbi Kiboi never satisfied requirements for Settlement Fund Trustee discharge. As was held by this Court in Boniface Oredo vs. Wabomba Mukile Civil Appeal No. 170 of 1989 (unreported), the interest of the Settlement Fund Trustee is really that of a chargee. It lends money for development to persons to whom it has allocated land and the repayment of such money is secured by a charge upon the property. The appellants did not provide any proof of payment of the loan advanced.30.Thirdly, the green card indicates that the succession was resolved and Kiboi Nganga Waweru obtained letters of administration following his mother's death, he acquired title through proper legal succession, and upon discharge of the property by Settlement Fund Trustee he was able to transfer it to the respondent.31.These documentary facts lead us to an inescapable conclusion grounded in a fundamental principle of law, “nemo dat quod non habet”, "no one can give what they don't have.” In our view, the appellants' entire case rests on shaky ground. They seek to enforce rights arising from a transaction where the vendor possessed nothing to sell and could convey nothing to the purchaser. The appellants have relied on the cases of Willy Kimutai vs Michael Kibet [2018] KECA 573 (KLR) and Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR to argue that equitable principles should prevail over the indefeasibility doctrine. While we acknowledge that these cases recognize the potential application of constructive trust principles, they are distinguishable from the present case. The doctrine of constructive trust requires, as its foundational premise, a valid and enforceable underlying transaction. In this case, the purported 1969 sale agreement between Mumbi Kiboi and John Kimani Munyaka was void ab initio. A constructive trust cannot arise from a void transaction.32.Our position is fortified even further by the fact that the documents relied upon by the appellants suffer from fatal procedural defects that undermine their entire case. The transfer document they rely upon admittedly was not stamped, and there is no evidence of Land Control Board consent for the alleged 1969 transaction.33.Again, the appellants' reliance on the internal correspondence from the Director of Land Adjudication and Settlement (DLASO) clearly mischaracterizes the nature and legal effect of such communications. The said DLASO letter addressed to the District Land Adjudication officer Olkalou claims that Mumbi Kiboi properly transferred the plot to John Kimani Munyaka in 1975, with proper witnesses and stamp duty paid. It further claims that the failure to sign the final documents was due to John Munyaka’s hospitalization and did not invalidate the sale and lastly, called for investigation due to the irregular documentation that resulted in transmission of the land to Kiboi NgangaWaweru as administrator of Mumbi’s estate, who after payment of the outstanding loan, bypassed the valid 1975 transfer and received title.34.In our view, administrative correspondence expressing concerns or raising questions cannot and does not constitute legal proof of an invalid title which requires formal court proceedings and judicial determination. It has not escaped our mind that the appellants did not call any witness from DLASO to testify to the contents of the letters or investigations arising, if any. However, more telling, is the fact that the very same DLASO office that allegedly questioned the validity of transfers subsequently removed the restriction they had placed on the property thereby clearing the path for the respondent's final registration. This administrative reversal by DLASO demonstrates that any concerns they may have had, were ultimately resolved in favour of the respondent's acquisition.35.We have keenly reassessed the record and there is no scintilla of evidence pointing towards fraud, forgery and misrepresentation in the transfer and registration of title in the name of the respondent. Further still, the cases filed by the parties lend credence to the respondent’s title. The proceedings in Civil Suit 66 of 1990 (Kiboi Ng'ang'a Waweru v Stephen Kimani) reveal that John Kimani Munyaka admitted in his testimony that he objected to the grant of letters of administration but his application was dismissed. This effectively confirms that Kiboi Waweru was the rightful successor to his mother’s estate.36.In Nakuru High Court Civil Case No. 229 of 1998, John Kimani Munyaka Vs Kiboi Nganga Waweru, John Munyaka sought declarations that Kiboi Nganga Waweru had acquired Nyandarua/Melangine/514 and 515 as trustee for him; An order of permanent injunction against Kiboi Nganga Waweru and an order for transfer of both L.R Nyandarua/Melangine/514 and 515 to him. The case was dismissed for want of prosecution on 4th July 2007.37.The consequences of this dismissal was immediate and far- reaching. It cleared all legal impediments that had prevented the respondent from obtaining clean title, including the removal of cautions and restrictions that John Kimani Munyaka had initiated against the property. More importantly, it allowed the respondent to complete his registration process and obtain the statutory protections that come with registered ownership and ultimately allowed him to file the High Court suit for trespass against the appellants. Even then, the appellants had an opportunity to file a counterclaim to assert the rights asserted in the dismissed Civil Suit 66 of 1990 but they failed to do so, which is telling of their conduct.38.Having carefully analyzed the convoluted history of this dispute, we painfully find that the learned trial judge correctly evaluated the evidence before her, applied the law and properly came to the correct conclusion. The respondent has established his claim to the suit property through a clear chain of evidence and facts, which stands in stark contrast to the appellants’ claim. The appellants’ arguments cannot overcome the fundamental defects in the foundation of their case, which we have highlighted herein above. Legal principles, however elegantly articulated, must be grounded in facts, and the facts in this case simply do not support the appellants' claim.39.Again, the appellants have failed to establish any fraud, misrepresentation, or illegality that would defeat the respondent’s title. The documentary evidence, particularly the green card entries, confirms the proper legal succession from Mumbi Kiboi to her son Kiboi Nganga Waweru, who subsequently transferred the subdivided Plot 515 to the respondent.40.Consequently, and having exhaustively considered the entire record of appeal and the applicable law, we find no error in the decision of the trial court. Clearly, the trial court considered all areas of the dispute and arrived at the correct conclusion.41.In the end, we make the following orders:(a)The appeal is dismissed in its entirety with costs to the respondent.(b)The judgment and orders of the Environment and Land Court dated 17th December 2019 are hereby confirmed and upheld.(c)The appellants shall vacate the suit property within 60 days of this judgment, failing which the respondent may apply for appropriate enforcement orders. It is so ordered.” 10.Undeterred, the applicants, who are acting in person moved this Court vide their application dated 1st November 2025 the subject of this ruling seeking leave to appeal to the Supreme Court against the above judgment. They also pray for an order that this Court certifies the intended appeal raises matters of general public importance within the meaning of Article 163 (4) (b) of the Constitution. Lastly, they pray for costs of the application to be in the intended appeal. The application is brought under Article 163 (4) (b) of the Constitution and it is supported by grounds on its body and the supporting affidavit sworn by both applicants annexed thereto. 11.The core grounds in support of the application are:(a)the dispute concerns the ownership of land pared numbers LR. No. Nyandarua/Milangine /514 and 515;(b)the applicants asserted that they are the lawful owners of the said land and they are in possession, while the respondent contended that he lawfully owns the land;(c)this Court in the impugned judgment dismissed their appeal and affirmed the judgement and orders of the ELC dated 17th of December 2019 in favour of the respondent;(d)the said decision raises substantial questions of law and matters of general public importance, specifically:i.The correct interpretation and application of Article 40 of the Constitution in relation to protection of property rights.ii.The validity and sanctity of land titles issued under previous land registration regimes vis-a- vis the Land Registration Act, 2012.iii.The jurisdictional relationship between the Environment and Land Court and administrative bodies such as the Land Registrar and the National Land Commission.iv.The standard of proof and evidentiary burden in determining competing claims of ownership and registration of land. 12.The applicants maintain that the above questions transcend the parties’ interests and bear directly on the security of land ownership, the integrity of the land registration system and public confidence in land administration in Kenya. They contend that the issues they have raised have led to conflicting decisions from our Superior Courts, thereby creating jurisprudential uncertainty necessitating clarification by the Supreme Court. They argue that their intended appeal is necessary to settle these fundamental constitutional and legal issues and to promote consistency and predictability in Kenya's land law jurisprudence. Therefore, it is in the interests of justice that they be granted leave to appeal to the Supreme Court. Further, no prejudice will be occasioned to the respondent if the leave sought is granted because the intended appeal concerns the interpretation and application of Article 40 of the Constitution, the sanctity of registered titles and the relationship between statutory land regimes and constitutional property rights, which are recurrent issues of national importance requiring authoritative determination by the Supreme Court. 13.In his replying affidavit dated 11th December 2025, the respondent averred that:(a)the case does not raise a matter of general public importance to merit determination by the Supreme Court, and,(b)the matters urged by the applicants have been determined by the trial court and this Court. 14.In their submissions in support of the application, the applicants cited the Supreme Court decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, SC App. No. 4 of 2012 in which the Apex which described a matter of general public importance as one whose determination transcends the circumstances of the particular case and has a significant bearing on the public interest, and which must:(a)raise a substantial question of law;(b)be of general public significance, not limited to the parties,(c)requires a definitive settlement by the Supreme Court, and,(d)reveals uncertainty or conflict in the law. 15.They also cited Malcolm Bell vs. Daniel Toroitich Arap Moi & Ano., SC App. No. 1 of 2013 in which the Supreme Court underscored that certification is reserved for legal issues of broad significance whose determination bears public interest and requires final pronouncement by the Apex Court. They also relied on Peter Oduor Ngoge vs. Francis Ole Kaparo, SC Petition No. 2 of 2012 in which the Supreme Court cautioned that mere dissatisfaction with a judgment is not a basis for certification but the matter must raise a point of law that affects the public or a significant class of persons. They relied on Town Council of Awendo vs. Nelson O. Onyango, SC Petition No. 49 of 2014 in support of the proposition that recurrent issues and uncertainty require guidance by Supreme Court. 16.Buttressed by the above decisions, the applicants argued that the intended appeal concerns interpretation and application of Article 40 of the Constitution in relation to the sanctity and indefeasibility of title and the circumstances under which a registered title may be challenged, impeached or cancelled. Citing Article 40 (6) of the Constitution, they argued that these questions directly affect the registered proprietors under the Land Registration Act, 2012, namely,(a)purchasers in good faith,(b)land registries and administrative bodies,(c)conveyancing practice and land transactions across Kenya, and,(d)public confidence in the integrity of the land registration system. Therefore, the effect of the impugned judgment is of national importance, far exceeding the circumstances of the applicants. 17.The applicants submitted that this case raises recurring and unsettled questions in land law. Further, indefeasibility of title and interpretation of Sections 24, 25, and 26 of the Land Registration Act are matters on which courts in Kenya have delivered inconsistent and often conflicting decisions. They maintained that the Courts have interpreted these provisions divergently, specifically concerning the threshold for impeaching registered title, the meaning of "unprocedurally acquired" title under Section 26 (b), whether administrative bodies may invalidate title absent of judicial process, the extent to which Article 40 protects proprietors and the balancing of constitutional rights and statutory exceptions. The applicants maintained that the intended appeal raises substantial constitutional questions such as interpretation of Articles 10, 40, 47 and 50 of the Constitution. 18.It was also the applicants’ submission that their intended appeal presents fundamental and unresolved questions of law relating to the constitutional protection of property and the statutory doctrine of indefeasibility of title. Therefore, a definitive finding of the Supreme Court will provide clarity and uniformity in Kenya's land law jurisprudence, reinforce the rule of law in land registration and conveyancing, advance public confidence in property rights and resolve legal uncertainty affecting thousands of landowners. According to the applicants, the foregoing matter falls squarely within the ambit of Article 163 (4) (b). 19.In opposing the application, the respondent’s counsel submitted that this is not a matter of general public importance because the claim relates to ownership of land and the issues presented before the ELC and this Court were conclusively determined and there is no element of general public importance involved in the ownership of the land or arising from the Court’s declaration that the appellants are trespassers on the respondent’s land. Therefore, the applicants do not deserve the leave sought. 20.The respondent’s counsel submitted that test for determining whether a matter is of general public importance was determined in the case of Hermanns Phillipus Steyn vs. Ruscone (Supra), thus:“In this context, it is plain to us that a matter meriting certification as one of general public importance, if it is one of law, requires a demonstration that a substantial point of law is involved, the determination of which has a bearing on the public interest. Such a point of law, in view of the significance attributed to it, must have been raised in the Court or Courts below. Where the said point of law arises on account of any contradictory decisions of the Courts below, the Supreme Court may either resolve the question, or remit it to the Court of Appeal with appropriate directions. In summary, we would state the governing principles as follows:i.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;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4) (b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” 21.The respondent’s counsel asserted that there is no substantial question of law worth being determined by the Supreme Court and the main issue for determination before the Supreme Court would be whether the applicants are on the suit land as a matter of right or they are trespassers or not. On the basis of the cases cited above, such a determination of contested issues of fact cannot be, in itself, a basis for granting certification for an appeal before the Supreme Court. Further, the issues urged in the application do not transcend the parties to warrant being classified as matters of public interest. 22.We have considered the application, the parties’ submissions and the case law cited. The sole issue for determination is whether the applicants have demonstrated that their intended appeal merits certification to appeal to the Supreme Court under Article 163 (4) (b) of the Constitution which provides that appeals lie from the Court of Appeal to the Supreme Court under the following circumstances:(a)as of right in any case involving the interpretation or application of the Constitution and(b)in any other case in which the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved. However, the Supreme Court may review certification under paragraph(b)and affirm, vary or overturn it. 23.The Supreme Court and this Court have consistently held that in applications for certification under Article 163 (4) (b) of the Constitution, only exceptional cases which raise cardinal issues of law or of jurisprudential moment will deserve the attention of the Supreme Court. (See Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo & 5 Others, SC Petition No. 2 of 2012 [2012] eKLR and Koinange Investment and Development Company Limited vs. Ian Kahiu Ngethe & 3 Others (Being sued as the personal representatives of the Estate of Robert Nelson Ngethe (Deceased)) [2019] eKLR. The reason behind the above approach is that the Supreme Court was never intended to serve as an additional tier for all and sundry appeals from this Court. Conversely, the requirement for certification was intended to serve as a filtering process to ensure that only appeals with elements of general public importance engaged the Supreme Court, whose role may not be relegated to that of correcting errors in the application of settled law, even where they are shown to exist. (See this Court’s decision in Sundowner Lodge Limited v Kenya Tourist Development Corporation (Civil Application Sup 19 of 2018) [2023] KECA 1131 (KLR)). 24.The onus to satisfy the Court that such matter or matters of general public importance exists rests on the applicant. The Constitution does not define “a matter of general public importance” nor does the Supreme Court Act or the rules made thereunder. In our view, the omission to define the said phrase may have been deliberate considering that matters of general public importance may be limited in time and scope depending on varying circumstances over a period of time. (See Sundowner Lodge Limited vs. Kenya Tourist Development Corporation (supra). However, in Hermanns Phillipus Steyn vs. Giovanni Gnecchi-Ruscone (Supra) the Supreme Court stated:“Before this Court ‘a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: it impacts and consequences are substantial, broad based, transcending the litigation- interests of the parties, and bearing upon the public interest”. 25.Public interest was defined by this Court in Kenya Civil Aviation Authority vs. African Commuter Service [2015] eKLR, as follows:“Public interest, although not susceptible of precise definition, has certain characteristics which are inherent in the term itself. As stated in R (Corner House Research) vs. Director of SFO [2008] 4 All ER 927“it must mean something of importance to the public as a whole rather than just to a private individual.”The Black’s Law Dictionary defines public interest as:“the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Government regulation.” 26.The question before us narrows to whether the applicants have satisfied the threshold laid down in the above cited cases to merit the certification sought. The first port of call in addressing this question is to satisfy ourselves whether the issues urged by the applicants were urged and determined before the trial court and before this Court. This is because the Supreme Court has definitively ruled that certification to appeal under Article 163 (4) of the Constitution cannot be based on fresh legal claims and must be premised strictly on issues that were raised and canvassed during the hearing of the appeal in the lower courts. For example, in Hassan Ali Joho & Ano. vs. Suleiman Said Shahbal & 2 Others; SC Petition No. 10 of 2013 [2014] eKLR and Gatirau Peter Munya v Dickson Mwenda & 2 Others; SC Application No. 5 of 2014 [2014] eKLR the Apex Court was categorical that an appeal lies to the Supreme Court under Article 163 (4) (a) if the issues placed before it involves the interpretation and application of the Constitution and had formed the basis of arguments for the determinations before the Superior Courts below. (See also Hermanns Phillipus Steyn vs. Ruscone (supra). 27.As mentioned earlier, the crux of the dispute before the trial court was who among the protagonists owned the suit property. Both parties’ evidence in support of their respective positions primarily sought to prove their respective ownership claims. The applicants’ grounds of appeal before this Court were that the learned judge erred by finding that Mumbi Kiboi had no title to pass when she entered into the sale agreement with John Kimani Munyaka on 16th April 1969, finding that the 1st respondent was the legal and rightful owner of the suit property; finding that their occupation constituted trespass, and finding that the respondent proved his case on a balance of probabilities. 28.In their submissions in support of their appeal, the applicants urged that the trial court disregarded the following evidence:(a)receipts for payment of the purchase price,(b)the application for consent of the Land Control Board,(c)the internal correspondence within the land adjudication and settlement department acknowledging that the transfer to Kimani Munyaka was valid; and(d)the certificate of consent by Settlement Fund Trustee and transfer forms provided. They also contended that their documentary evidence and the sale agreement dated 16th April 1969 adequately proved that John Kimani Munyaka had a valid claim to the suit property.Further, controlled transactions that lacked the requisite consent under the Land Control Act could still be enforced under the equitable doctrine of constructive trust especially in the circumstances of this case where parties had executed a sale agreement, the purchaser had paid the full purchase price and was in actual occupation and the charge from the Settlement Fund Trustee was transferred to John Kimani Munyaka. 29.It was their case that a constructive trust in favour of John Kimani had been proved because the death of both parties prevented the transfer from being effected. They argued that Kiboi Ngang’a Waweru, knowing of the sale transaction, improperly registered himself as the owner of the suit property and transferred it to the respondent. Therefore, the learned judge made a wrong finding by concluding that the respondent was registered as proprietor by virtue of the law. Lastly, they denied they were not trespassers. Similarly, as heighted earlier, the respondent’s evidence and submissions were geared to establishing their ownership claim to the suit property. 30.However, as highlighted at paragraphs 16 and 17 above, before this Court the applicants are urging this Court to certify this matter contending that their case raises substantial questions of law, namely:(a)the correct interpretation and application of Article 40 of the Constitution in relation to protection of property rights;(b)the validity and sanctity of land titles issued under previous land registration regimes vis-a- vis the Land Registration Act, 2012,(c)the jurisdictional relationship between the Environment and Land Court and administrative bodies such as the Land Registrar and the National Land Commission, and(d)the standard of proof and evidentiary burden in determining competing claims of ownership and registration of land, (d) interpretation of provisions of Sections 24, 25 and 26 of the Land Act and Articles 10, 40, 47 and 50 of the Constitution. 31.As is evidently clear, the above issues were not pleaded, canvassed and determined by the trial court or this Court sitting as the first Appellate Court. The Supreme Court in Lawrence Nduttu & 6,000 Others vs. Kenya Breweries Ltd & Another (SC Petition No. 3 of 2012 delineated the boundaries of its appellate jurisdiction under Article 163 (4) (a) (constitutional interpretation) and 163 (4) (b) (matters of general public importance). The Apex Court held that:(a)the intended appeal must originate directly from the issues of contestation that revolved around the matter before the trial court and the Court of Appeal, and,(b)an applicant cannot seek certification based on entirely new questions that were never submitted to or analyzed by the courts below. The Supreme Court's mandate is to review how the lower courts handled the dispute, not to hear a restructured case. 32.In Olive Mugenda vs. Wilfred Itolondo & 11 Others [2016] KESC (KLR), the Supreme Court rejected attempts by litigants to belatedly raise constitutional issues or matters of alleged public importance purely as a tactical vehicle to secure certification. The Apex Court affirmed that:(a)an appellate court cannot be faulted for failing to determine an issue that was never urged, argued, or pleaded before it, and,(b)allowing a party to secure certification based on freshly minted arguments constitutes an unfair litigation tactic that prejudices the opposing party, who never had a chance to counter those points at trial.None of the question listed by the applicants were raised, heard and determined before the trial court or before this Court. As clearly settled by the above cited cases, a litigant cannot circumvent procedural requirements by introducing entirely new legal principles or constitutional questions at the final appellate level to meet the certification criteria. On this ground alone, the applicants’ application fails. 33.The applicants claim that their intended appeal raises issues of general public importance to justify certification to appeal to the Apex Court. In Town Council of Awendo vs. Nelson Oduor Onyango & 13 Others [2015] eKLR the Supreme Court gave guidance in dealing with Article 163 (4) (b) as follows:i.for an intended appeal to be certified as one involving a “matter of general public importance,” the intending appellant is to 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;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant is to demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law is/are to have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance,” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by and of themselves, a basis for granting certification for an appeal before the Supreme Court;viii.issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis of certification for appeal to the Supreme Court;ix.questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;x.questions of law that are destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certification for final appeal in the Supreme Court;xi.Questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance,’ justifying certification for final appeal in the Supreme Court.” 34.The definitive judicial definitions and tests for what constitutes a matter of "general public importance" are outlined in several landmark Apex Court rulings in various jurisdictions. The foundational definition of the term was established by the Constitutional Court of South Africa in Paulsen & Ano. vs. Slip Knot Investments 777 (Pty) Ltd [2015] ZASCA / ZACC 5 which underscored that:(a)Transcending Litigant Interests. The Court ruled that for a matter to be of general public importance, its impact and consequences must be substantial, broad-based, and transcend the narrow litigation interests of the immediate parties.(b)Bearing Upon Public Interest. The decision must directly bear upon the broader public interest or affect a large, distinct class of people.(c)Not Required to Affect Everyone. The Court clarified that an issue does not need to affect all citizens or the entire nation to qualify. It is legally sufficient if it is of importance to a significant section of the public.(d)Likelihood of Recurrence. A matter meets the definition if the specific legal issue is highly likely to arise again in future cases, thereby requiring definitive judicial clarification for the sake of legal certainty. 35.The term “general public importance” has also been defined negatively by explicitly ruling on what fails to meet the standard. In Tiekiedraai Eiendomme (Pty) Limited vs. Shell South Africa Marketing [2019] ZACC 14, the Constitutional Court of South African held that the mere interpretation of a private contract between two parties does not constitute a matter of general public importance. It is an ordinary legal dispute, not a point of law that carries broad-based societal consequence. Before us is an ordinary civil dispute between two parties claiming ownership of the suit land which does not transcend beyond the parties and does not raise matters of general public interest. To suggest otherwise is in our view to trivialize the threshold for certification. 36.Lastly, the applicant cited provisions of the Land Act and claimed that there are conflicting court decisions on those provisions. Again, this is a totally new argument which was not raised and canvassed before the trial court and in this Court. On this ground alone, this argument collapses. We say no more. Nevertheless, we can add that the applicants never listed the conflicting decisions. An applicant must demonstrate the existence of conflicting decisions or demonstrate that a legal rule itself is unsettled, broken or requires development, rather than just uttering a blanket assertion. The jurisdiction of the Supreme Court under Article 163 (4) (b) is not a jurisdiction to be invoked merely for the purpose of rectifying errors or to determine contested issues of facts between the parties. (See Malcolm Bell vs. Daniel Toroitich Arap Moi & Ano., SC App No. 1 of 2013). 37.We have said enough to demonstrate that the applicants’ application dated 1st November 2025 is absolutely devoid of merit. Accordingly, we dismiss the said application with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. MATIVO................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.