https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1508

Nzoia Sugar Company Ltd v Mwanyale (Civil Application E072 of 2026) [2026] KECA 1508 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KECA 1508 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E072 of 2026 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 24, 2026 Between Nzoia Sugar Company Limited Appellant and Nobert Muhoro Ikundo Mwanyale Respondent (Being an application for leave to appeal to the Supreme Court of Kenya and stay of execution arising from the judgment of the Court of Appeal at Kisumu (Asike- Makhandia, Omondi and Nyamweya, JJA) dated 17th March 2026inCivil Appeal No 233 of 2021) Ruling 1.Before us is a motion application dated 31st March 2026 brought under Articles 159(2) and 163(4) (b) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, rules 41, 42, 43, 44 and 45 of the Court of Appeal Rules and all enabling provisions of the law, through which Nzoia Sugar Company Limited, (the applicant), has moved this Court for certification and leave to appeal to the Supreme Court against the judgment of this Court dated and delivered on 17th March 2026. The applicant also seeks stay of execution of that judgment and decree pending the hearing and determination of the intended appeal to the Supreme Court. 2.The motion is premised on the grounds on its face and the affidavit sworn by Rita Mukhongo, the applicant’s company secretary. The applicant has raised several grounds in support of the motion, summarized as follows: that the intended appeal to the Supreme Court involves a matter of general public importance transcending the private interests of the parties in dispute; that the intended appeal raises points of law; that the application for certification has been occasioned by a state of uncertainty in law arising from this Court‘s decision declining to unravel fraud despite the respondent forging academic certificates and used them to gain employment with the applicant, a state corporation; whether keeping salary, remuneration and other emoluments fraudulently obtained from the public institution funded by tax payers contravenes Articles 10 and 232 of the Constitution on national values and principles of governance and values and principles of public service and public policy, respectively, having secured employment from the applicant using admittedly forged academic certificates; whether a contract of employment could be founded on fraud; illegality and forged certificates on the strength of which the employee draws money from the public institution funded by tax payers where the employee having admitted the fraud, has been convicted by a court of law. 3.According to the applicant, although the issue framed by this Court, namely whether the judgment of the ELRC could be vitiated on the basis of the respondent’s fraud in securing employment with the applicant, the Court answered that issue in the negative, despite the issue of fraud having not been controverted. 4.The application was canvassed through the applicant’s written submissions dated 18th May 2026, which Mr. Wesonga, counsel for the applicant, fully relied on. The respondent neither filed a response nor attended court despite service. 5.The applicant seeks certification from this Court to appeal to the Supreme Court pursuant to Article 163 (4) (b) of the Constitution, and submits that the criteria for certification and leave to appeal to the Supreme Court, as enunciated in the case of Hermanus Phillipus Steyn vs. Giovanni Gnecchi- Ruscone (2013) KESC 11(KLR), has been satisfied. 6.The applicant reiterates the grounds in the motion and the affidavit to contend that the application raises a matter of general public importance concerning whether the respondent having forged academic certificates and used them to gain employment with the applicant, he could keep the salary, remuneration and other emoluments fraudulently obtained from the public institution and whether such a fraudulent act is a contravention national values and principles of governance in Article 10 and values and principles of public service in Article 232 of the Constitution; whether a contract of employment could be founded on fraud which has been admitted and the employee has been convicted by a court of law. 7.The applicant argues that this Court erred in stating that although fraud was acknowledged, the issue had not been properly pleaded and determined before the ELRC, as the trial court, and, therefore, the judgment of the ELRC could not be challenged on the ground of fraud and this Court could not properly render itself on the issue thus, the issue of fraud is at the heart of this application. 8.The applicant asserts that the application meets the threshold set in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone (supra) as its impact and consequences are substantial and broad based, transcending the litigation interests of the parties and bearing upon the public interest; that the issues raised in the application meet the threshold of matters of general importance meriting reconsideration by the Supreme Court; the question of forged academic certificates is a repeated occurrence in the general course of employment litigation which affects a considerable number of persons in general and is destined to continually engage the working of the judicial organ, given its bearing on the proper conduct of administration of justice. 9.The brief facts leading to this application are as follows: The respondent was employed by the applicant as head of Information and Communication Technology (ICT); he undertook his duties, including procuring an email exchange server which however could not be installed or used for various reasons, and recommended that a staff audit be conducted to establish whether there were any ghost workers in the applicant’s employment. The audit report concluded that the department the respondent headed had not installed infrastructure and technology, and that the software installed was inadequate, was not genuine and was not in use. The applicant was served with a show cause letter; he was taken through disciplinary proceedings and his employment was terminated. His appeal through the internal appeal mechanism did not elicit a response, forcing him to file a claim before the ELRC. 10.The applicant’s application before the ELRC for leave to adduce more evidence was dismissed. After trial of the claim, the ELRC was not satisfied that the applicant had acted improperly in terminating the respondent’s employment and dismissed the claim for unlawful termination. The ELRC, however, found that the respondent had proved other claims, including salary arrears and awarded him Kshs.3,656,573.48 with interest and cost of the suit. 11.The applicant was aggrieved and lodged an appeal before this Court. The applicant then applied for leave to adduce additional evidence which was allowed. In a judgment delivered on 27th February 2026, this Court (Asike- Makhabdia, Omondi and Nyamweya, JJA), partially allowed the appeal and reduced the amount awarded to the respondent to Kshs. 1,325,069.40 with interest at court rates from the date of the judgment of this Court. 12.We have considered the application and submissions by the applicant. The issue for determination is whether the application meets the threshold for certification to the Supreme Court. 13.The principles governing certification under Article163(4)(b) of the Constitution were established in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone (supra), that for an application for certification to succeed, the intended appeal must be one that raises matters of general public importance, transcends personal interest of the parties, raises substantial questions of law, and has significant bearing on public interest. The Supreme Court stated as follows:“…a matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.” 14.In Kenya Plantation and Agricultural Workers Unions vs. Kenya Export Floriculture and allied Workers’ Union (Kefhau) represented by its Promoters David Benedict Omulama & 9 Others [2018] eKLR, this Court stated as follows:“The principles set out in Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone (supra) to determine whether a matter is of general public importance included: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.Determination of facts in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” 15.An appeal to the Supreme Court is only a matter of right is it arises under Article 163(4)(a). An appeal under Article 163(4)(b) is by Certification and leave from this Court or the Supreme Court. In Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd. and J. Harrison Kinyanjui & Co. Advocates [2012] KESC 9 (KLR), adverted to this position the Supreme Court stating that an appeal under Article 163(4)(b) of the Constitution lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. The Supreme Court emphasized that it is the certification by either Court which constitutes leave. This means therefore that where a party wishes to invoke the appellate jurisdiction of the Supreme Court, the intending appellant must convince this Court or the Supreme Court that the case involves a matter of general public importance. 16.Applying these principles to the present application, the question is: does the issue identified as revolving around fraud the applicant claims, the respondent committed by forging academic certificates which he used to gain employment and paid using public resources a matter of general importance? The applicant thinks so, arguing that the Supreme Court should determine whether keeping salary, remuneration and other emoluments fraudulently obtained from a public institution funded by tax payers contravenes national values and principles of governance under Article 10 and values and principles of public service under Article 232 of the Constitution as well as public policy. 17.While addressing the issue of fraud in the impugned judgment, this Court stated as follows:13.In addition, the trial Court found that the respondent was employed by the appellant on 30.08.2012 and his employment terminated on 18.12.2014, and therefore worked for 2 years 4 months and obtained and received Kshs.8,759, 576/= at the salary of Kshs.320,000/= per month from the tax payer's basket by using fake academic credentials and imposing himself as Norbert Muhoro well knowing that he was not, which issue was alive to the trial Court. Accordingly, that the trial Judge ought to have adverted his mind on the legal consequences of the said deceit and misrepresentation by the respondent herein especially that it was contrary to law and public policy for the trial Court and any other Court to give advantage to the Respondent based on the forged academic qualifications that subsequently underpinned the equally illegally obtained senior employment position with the Appellant. Counsel cited the holding in Lazarus Estates Limited vs Beasly (1956) 1 ALL ER 340 for the proposition that no court will allow a person to keep advantage which he has obtained by fraud and that fraud unravels everything. Lastly, that it is a settled and a well-established principle of law that a fraudulent person would not be entitled to the protection of the law since the law aids those who come to it with clean hands and not those who forge records and documents, and since the entire claim by the respondent herein was founded on forgery, the entire case ought to crumble and any orders founded upon it set aside.14.We have noted the concerns raised by the appellant, and that the averments made were not controverted by the respondent. However, we also note that the issues raised in this appeal were raised before the trial Judge in the application dated 15th January 2019, and summarily dismissed in the order given on 17th January 2019, which order was not appealed by the appellant. Since the appellant’s application sought to amend its Memorandum of Response to plead the respondent’s fraud and misrepresentation, and produce further documents as proof thereof, the effect of the dismissal of the application was that this issue was neither pleaded nor proved in the trial Court. In addition, the dismissal was never appealed by the appellant, and even though this Court allowed additional evidence of the fraud to be adduced by the appellant, the result is that since the said evidence is not supported by any pleadings of fraud in the trial Court, it cannot be used as proof of findings of fraud by this Court.” (Emphasis added). 18.This Court went on to state that fraud unravels everything only when it is specifically pleaded and proved and, therefore, the judgment of the ELRC could not be challenged on the ground that the respondent’s employment was vitiated by fraud since fraud was neither pleaded nor proved during the trial. That was the reason why this Court could not impugn the decision of the ELRC in the absence of clear pleadings on the issue and determination on it, or otherwise, by the ELRC. 19. Flowing from the observation by this Court that the issue had not been pleaded before the ELRC and the appeal was not founded on any pleadings over the issue, does the application meet the test for certification to the Supreme Court? The answer must be an obvious no. This is because for an application to be certified as raising matters of general public importance, the issue(s) to be considered by the Supreme Court must not only be of general public importance, transcending personal interest of the parties, raising substantial questions of law and has significant bearing on public interest; the issue(s) must also have been determined within the judicial hierarchy up to this Court. 20.Under Article 163(4)(b) of the Constitution, an appeal to the Supreme Court is by certification by this Court or the Supreme Court itself that it involves a matter of general public importance. For this Court to certify the matter, it must have conclusively determined it. In other words, the matter matter must have gone through the hierarchical chain of the Courts before reaching the Supreme Court. There must be a final determination from this Court accompanied by a Certificate that the matter is of general public importance . 21.The Supreme Court addressed this issue in in Erad Suppliers & General Contractors Ltd v. National Cereals & Produce Board [2012] eKLR, and although it was dealing with an appeal filed pursuant to Article 163(4)(a), the Supreme Court firmly established that for an appeal to be admissible, a petitioner must demonstrate that the matter coming on appeal was the subject of litigation before the High Court, involving the interpretation and application of the Constitution, which has risen through the judicial hierarchy on appeal to this Court and ending up in the Supreme Court. 22.Further, in Dhanjal Investments Limited v Shabaha Investments Limited [2022] eKLR, the Supreme Court struck out the appeal because the question of violation of the appellant’s constitutional rights not had not been argued and determined by the High Court and was not central to the determination by this Court. 23.By parity of reasoning, therefore, the issue of fraud having not been pleaded and determined by the ELRC and was not central to the determination by this Court in the decision the applicant wants to appeal against, we are of the firm view, that the applicant has not demonstrated that the application meets the threshold for certification as one that involves a matter of general public importance for purposes of certification to the Supreme Court. 24.In the end, we find that the application has no merits and we hereby dismissed it with no order on costs. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.....................................E. C. MWITAJUDGE OF APPEAL.........................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR