https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1098

Meso Multipurpose v Luore Nyairo Company Ltd & another (Civil Application E029 of 2026) [2026] KECA 1098 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1098 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E029 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA June 12, 2026 Between Meso Multipurpose Applicant and Luore Nyairo Company Limited 1st Respondent M/S Agricultural Finance Corporation 2nd Respondent (Being an application for certification and leave to appeal to the Supreme Court of Kenya from the judgment of the Court of Appeal at Eldoret (Warsame, Mativo & Gachoka, JJ.A) delivered on 27th February, 2026inCivil Appeal No. 127 of 2020 Environment and Land Case 111 of 2008 ) Ruling 1.Before us for determination is a Notice of Motion dated 18th March 2026 brought pursuant to Article 163(3)(b) and (4) of the Constitution, rules 24 and 26 of the Supreme Court Rules, and rule 40 of the Court of Appeal Rules. The applicant, Meso Multipurpose Society Limited, desires to appeal to the Supreme Court against the judgment of the Court (Warsame, JA (as he then was) and Mativo & Gachoka, JJ. A) delivered on 27th February 2026 in Eldoret Civil Appeal No. 127 of 2020. The applicant seeks our certification that the intended appeal raises matters of general public importance, and once leave to lodge the appeal is granted, such leave does operate as a stay of execution of this Court’s judgment pending the hearing and determination of the intended appeal. 2.The motion is supported by the affidavit of Patrick Simiyu Nyongesa, the chairman of the applicant. From the averments contained therein, the applicant seeks certification on numerous proposed questions, including, the circumstances under which a constructive trust is created, whether the doctrine of constructive trust can be imported into a land sale agreement to defeat a registered title, whether section 100 of the Land Act, 2012 is inconsistent with Article 40 of the Constitution, the legal position when a chargee receives payments from a third party without responding to a chargor’s request for consent to sell, and the effect of the judgment of this Court on over 2,000 residents and public utilities such as schools, a hospital and churches. The applicant contends that these issues transcend the parties to the suit and affect considerable number of persons, thereby satisfying the threshold for certification under Article 163(4)(b) of the Constitution. 3.The 1st respondent, Luore Nyairo Company Limited, opposed the application through a replying affidavit sworn by Philip Okoth Okundi, its sole director and shareholder. The 1st respondent admitted that there has been litigation between the parties concerning the suit property, which was conclusively determined by the trial court in its favour, and that the applicant’s appeal to this Court was dismissed in its entirety, thereby affirming the trial court’s judgment. It is averred that the judgment of this Court is final and binding, and that no order exists setting it aside, varying it, or staying its execution. The 1st respondent contends that the applicant has failed to demonstrate that the intended appeal raises any matter of general public importance within the meaning of Article 163(4)(b) of the Constitution, and that the issues raised remain confined to the peculiar facts and circumstances of the dispute between the parties. 4.The 2nd respondent did not file any response and did not participate in these proceedings. 5.When the application was placed before us, learned counsel Mr.Mokua appeared for the applicant and learned counsel Mr. Ong’udi represented the 1st respondent. Counsel for the parties sought to entirely rely on the written submissions already filed. 6.In his written submissions, learned counsel Mr. Mokua argued that the intended appeal raises matters of general public importance because the dispute affects over 2,000 members of the applicant who had occupied the suit property since 1989, developed permanent structures, and established public amenities. Counsel submitted that the judgment of this Court, if executed, will result in the eviction of these members, rendering them destitute and disrupting public services. Counsel relied on the Supreme Court decision in Town Council of Awendo v Nelson Oduor Onyango & 13 Others [2015] eKLR, where the Supreme Court granted certification and stay of execution on the ground that the judgment affected the proprietary rights of persons not privy to the proceedings and would curtail the social and economic rights of over 20,000 residents. Counsel also placed reliance on the Supreme Court decision in Arvind Shah & 7 Others v Mombasa Bricks & Tiles Ltd & 5 Others [2022] KESC, where the Supreme Court certified as matters of general public importance the questions whether a constructive trust can be imported into a land sale agreement to defeat a registered title, and whether a constructive trust can be imported into shareholding to disentitle a registered holder of shares obtained for valuable consideration. Counsel submitted that by parity of reasoning, the questions raised in the present application similarly merit certification. 7.Additionally, it was Mr. Mokua’s submission that the applicant and its members have liquidated the deceased chargor’s loan with the 2nd respondent to the tune of Kshs. 17 million, yet the 2nd respondent admits receiving only Kshs. 9.3 million, giving rise to questions of unjust enrichment and estoppel. Counsel argued that the trial court granted orders for eviction and demolition, which were never sought by the 2nd respondent, and that no counterclaim had been filed to warrant such orders. Counsel maintained that the intended appeal therefore raises substantial points of law with significant bearing on the public interest, particularly the protection of property rights under Article 40, the right to information under Article 35, and the principles of equity and natural justice enshrined in Article 10 of the Constitution. 8.In opposition to the application, learned counsel Mr. Ong’udi, relied on the Supreme Court decision in Hermanus Phillipus Steyn v Giovanni Gneechi-Ruscone [2013] eKLR, to submit that a matter of general public importance must transcend the circumstances of the particular case and have a significant bearing on the public interest, and that mere apprehension of miscarriage of justice is not a proper basis for granting certification. Counsel maintained that the principles governing certification under Article 163(4)(b) are firmly settled. Relying on Malcolm Bell v Daniel Toroitich Arap Moi & Another [2013] eKLR, counsel urged that certification is only granted where the issue raised is substantial, transcends the parties, and bears consequences beyond the dispute before the court. Mr. Ong’udi further relied on Diasproperty Company Limited v Githae [2025] KESC 19 (KLR), to urge that the dispute herein was substantially revolving around ownership, occupation and equitable interests in land and therefore remained predominantly fact-specific notwithstanding constitutional framing. 9.Counsel urged that the invocation of constructive trust, estoppel and equitable interests does not automatically convert a private land dispute into a matter of general public importance. Citing Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR), counsel submitted that the principles governing constructive trust are already settled within Kenyan jurisprudence, and that no novel issue arises requiring determination by the Supreme Court. Finally, counsel invoked the principle of finality in litigation as emphasized in John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] eKLR, arguing that the present application is an attempt to re- litigate matters conclusively determined by competent courts, urging that the application be dismissed with costs. 10.The sole issue for determination is whether the applicant has demonstrated that the intended appeal raises a matter of general public importance within the meaning of Article 163(4)(b) of the Constitution, so as to warrant certification for an appeal to the Supreme Court. 11.Article 163 (4)(b) of the Constitution provides that appeals from the Court of Appeal to the Supreme Court on a matter of “general public importance” can only lie upon certification by this Court or the Supreme Court. The governing principles for certification under Article 163(4)(b) were authoritatively laid down by the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gneechi- Ruscone [2013] eKLR in the following terms:“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;ivwhere 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;vmere 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.” 12.The foregoing principles were restated by the Supreme Court in Bell v Moi & Another [2013] KESC 23 (KLR) and have since remained the yardstick for considering an application for certification of an appeal to the Supreme Court from a judgment of this Court. The principles as established by the Supreme Court therefore bind us. 13.Applying these principles to the present application, we observe that the dispute between the parties has its genesis in a sale agreement between the applicant and the late James Omondi Ouko in 1989, and subsequently with the 2nd respondent as chargee. The trial court and this Court on first appeal made concurrent findings of fact that the 1st respondent lawfully acquired LR No. 7060/4 measuring 250 acres through a sale concluded in 1990, and that the 2nd respondent lawfully acquired LR No. 7060/3 measuring 350 acres through a public auction in 1997. Both courts found that the applicant failed to tender any enforceable sale agreement, did not obtain consent from the Land Control Board as required under section 6 of the Land Control Act, and did not register any caution or interest over the suit property. This Court further found that, even if applicable, the doctrine of constructive trust was not pleaded before the trial court and could not be raised for the first time on appeal. 14.We are therefore not persuaded that the applicant’s intended appeal raises any matter of general public importance. The questions framed by the applicant, such as the circumstances in which a constructive trust is created and whether it can defeat a registered title, are not novel. As the Court of Appeal held in Willy Kimutai Kitilit v Michael Kibet (supra), the equitable doctrines of constructive trust and proprietary estoppel are applicable to land subject to the Land Control Act, but their application depends largely on the circumstances of each particular case. That decision, which this Court followed, did not create uncertainty in the law. On the flipside, it settled that such doctrines are available but fact- dependent. The Supreme Court in Diasproperty Company Limited v Githae (supra) similarly reaffirmed that disputes revolving around ownership, occupation and equitable interests in land remain predominantly fact-specific, and that the mere invocation of constructive trust does not automatically convert a private land dispute into a matter of general public importance. 15.The applicant’s reliance on Arvind Shah v Mombasa Bricks & Tiles Ltd (supra) is misplaced. In that case, the Supreme Court certified the question of whether a constructive trust can be imported into a land sale agreement to defeat a registered title, but only after finding that the issue was substantial, had a significant bearing on the public interest, and transcended the circumstances of the parties. 16.Crucially, the Supreme Court in that case was satisfied that the issue had arisen in the courts below and had been the subject of judicial determination. In the present case, the issue of constructive trust was never pleaded in the trial court. This Court in its judgment appreciated that much. The issue of constructive trust was never pleaded nor argued until the appeal came up before this Court on appeal. It is an issue that lacks the benefit of interpretation by the trier of facts. The intended appeal therefore seeks to canvass an issue that was not the subject of judicial determination in the court below. 17.In this regard, we are bound by the Supreme Court dictum in Munyi v Munyi [2015] KESC 9 (KLR) that:“12.In Peter Ngoge v Francis Ole Kaparo & 5 Others, Sup. Ct. Petition No. 2 of 2012 [2012] eKLR, we signaled the guiding principle that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, do indeed have the competence to resolve all matters turning on the technical complexities of the law, and that only cardinal issues of law, or of jurisprudential moment, deserve the further input of the Supreme Court. This principle was further underlined in Erad Suppliers & General Contractors Limited v National Cereals & Produce Board Sup Ct. Petition No. 5 of 2012; [2012] eKLR as follows:“… a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance, is to be resolved at that forum in the first place, before an appeal can be entertained.” 18.The applicant’s contention that the judgment affects over 2,000 residents and public amenities, while emotive, does not elevate a private land dispute into a matter of general public importance. As the Supreme Court stated in Hermanus Phillipus Steyn v Giovanni Gneechi-Ruscone (supra), the impacts and consequences of a matter must be substantial, broad-based, and transcending the litigation interests of the parties, bearing upon the public interest. The fact that a dispute affects numerous persons or may cause hardship does not of itself satisfy the constitutional threshold. The applicant and its members have been occupants of the suit property, but the courts below have conclusively found that they have no proprietary or registrable interest in the land. The remedy for such occupants, if any, lies elsewhere and not through a third or fourth tier appeal to the Supreme Court on grounds that remain fact- specific and not of general public importance. 19.Finally, we echo the principle of finality in litigation. The applicant has had its day in the trial court and in this Court on first appeal. Both courts made concurrent findings of fact and law. To grant certification on the grounds advanced would undermine the filter process established under Article 163(4)(b) of the Constitution and open the floodgates for parties dissatisfied with factual findings to seek a further hearing before the Supreme Court. 20.For the foregoing reasons, we find that the applicant has failed to demonstrate that the intended appeal raises any matter of general public importance within the meaning of Article 163(4)(b) of the Constitution. The issues raised are predominantly factual and revolve around a dispute between the parties herein. Additionally, the alleged contradictions in the principles of law invoked are well settled in Kenyan jurisprudence and require no further pronouncement by the Supreme Court. As a result, leave to appeal to the Supreme Court cannot issue. In the absence of such leave, the applicants' prayer for an order of stay, and whether such an order can be granted by this Court, becomes moot. 21.Accordingly, the notice of motion dated 18th March 2026 lacks merit and is hereby dismissed in its entirety. Considering the nature and history of the dispute herein, we deem it proper that each party bears its own costs of this application, and we so order. DATED AND DELIVERED AT ELDORET THIS 12TH DAY OF JUNE 2026.M. GACHOKA C.Arb, FCIArbJUDGE OF APPEAL...............................W. KORIRJUDGE OF APPEAL...............................L. M. NDOLOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR