[2019] KESC 23 (KLR)

Pati Limited v Funzi Island Development Limited & 4 others (Civil Application 4 of 2015) [2019] KESC 23 (KLR) (Civ) (6 August 2019) (Ruling)

Pati Limited v Funzi Island Development Limited & 4 others [2019] eKLR

Neutral citation: [2019] KESC 23 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Civil Application 4 of 2015

MK Ibrahim, SCJ, PM Mwilu, DCJ & V-P, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

August 6, 2019

Between

Pati Limited

Applicant

and

Funzi Island Development Limited

1st Respondent

J. B. Havelock

2nd Respondent

M E. Havelock

3rd Respondent

The County Council of Kwale

4th Respondent

Commissioner of Lands

5th Respondent

(Being an application for review of the decision of the Court of Appeal in Civil Application No. 10 of 2014 declining leave to appeal to the Supreme Court)

Ruling

A. Introduction 1. This is an application by way of an Originating Motion dated 2nd April 2015 that seeks an order for stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C.A No. 252 of 2005 – Funzi Island Development Ltd & 2 Others v Pati Ltd & 2 Others and the review of the Ruling of the Court of Appeal dated 20th March 2015 in Malindi Civil Application No. 10 of 2014 Pati Ltd v Funzi Island Development Ltd and 4 Others. The Motion was filed pursuant to Article 163(5) of the Constitution, Sections 15, 16 and 24 of the Supreme Court Act and Rules 24 and 26 of the Supreme Court Rules 2012.

2. In principle, the Applicant is seeking a review of the Court of Appeal Ruling (Okwengu, Makhandia & Sichale) dated 20th March, 2015 which declined to certify its intended appeal to this Supreme Court as one involving a matter of general public importance. The application has also sought stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C. A. No. 252 of 2005, pending its hearing and determination.

B. Litigation Background i) High Court 3. The intended appeal, subject of this application for review of denial of certification, is traced to a Judicial Review Miscellaneous Application No. 272 of 1994 filed by the 1st, 2nd and 3rd Respondents in the High Court in which they sought the following orders: 1. That the Gazette Notice No. 3831 dated 24. 6.1994 setting apart Land on Funzi Island and letter dated 27. 7.1994 addressed to interested party Pati Limited relating to the allotment of un-surveyed Plot 0. 1. ha for the purpose of boat landing base issued by the Commissioner of Lands be quashed and or set aside being null and void.

2. That the grant issued CR106 under Registration of Titles Act to Pati Limited by respondents be quashed and or set aside as being null and void.

3. That Pati Limited , its employees, servants and agents be prohibited from having any dealings whatsoever, or carry out any development, or occupation entry upon or any access or otherwise on the said land on Funzi Island.

4. That the costs of and incidental to this application be the applicants’ and be paid by the respondents.

4. The main contention in the Judicial Review proceedings was that the original land allocated by Kwale County Council as Trust Land set apart under section 7 of the Trust Land Act Cap. 288, and allocated to the interested party was at all material times forest land as opposed to Trust Land. Hence, being forest land, no allotment could have legally taken place on the land unless there was a declaration that it had ceased to be such forest land. In a judgement delivered on 14th October, 2004, the High Court, Khaminwa, J (as she was then), declined to issue the orders sought and dismissed the application with costs.

ii) Court of Appeal 5. Dissatisfied with the decision of the High Court, the 1st, 2nd and 3rd Respondents filed an appeal to the Court of Appeal on several grounds. The appellate Court condensed the grounds of appeal into the following, whether:i)The judge erred in holding that the Appellants had no locus standi in the matters as it is only the Minister in charge of forests that could challenge the allocation of the suit land to Pati Limited;ii)The judge erred in finding that the suit land was Trust Land and not forest or beach land;iii)That even if the suit land was Trust Land, the judge erred in finding that it had properly been set aside and allocated to Pati Limited, a private developer.

6. To determine the appeal, the Court of Appeal framed three issues for determination namely:a)Whether or not the applicants have locus standi in the matter;b)Whether or not the suit land was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act;c)If it was Trust Land, whether or not the Council had authority to and did properly and regularly alienate it to one,Hon. Mwamzandi at whose request it later re-allocated it to Pati Limited.

7. In its judgement delivered on 27th February 2014, the Court of Appeal (Maraga, Karanja & Githinji JJA) unanimously held that under that legal notice and proclamation, the suit land was at the material time not Trust Land. It was and is still partly forest land and partly beach land which was not available for alienation; that the allocation of the suit land in this case to Hon. Mwamzandi and later to Pati Limited was an act of fraud and the contention of the indefeasibility of title cannot avail to the 3rd Respondent.

8. Consequently, the Appellate Court allowed the appeal and granted an order quashing the allocation of the suit land to Hon. Mwamzandi and later to the 3rd Respondent. It also quashed the letter of allotment dated 27th July 1994 as well as the Grant No. 106 relating to L.R 20247.

iii) Court of Appeal, Certification application 9. Aggrieved by that decision of the Court of Appeal, the Applicant herein, lodged an application to the Court of Appeal for certification seeking leave to appeal to this Court on the ground that the matter involves issues of general public importance. In its ruling dated 20th March, 2015, the Court of Appeal (Okwengu, Makhandia & Sichale JJA) declined to grant certification and dismissed the application stating that the Applicant had not satisfied the principles for grant of certification under Article 163(4)b of the Constitution.

10. It is the dissatisfaction with that decision, that prompted the Applicant to now approach this Court for a review its review and for grant of leave to file an appeal to this Supreme Court.

iv) Supreme Court: Application for extension of time 11. It is worth noting that the Applicant, Pati Limited, first filed an Application No. 28 of 2014, seeking leave of this Court for extension of time within which to file and serve a Notice of Appeal time having lapsed before it could file a Notice of Appeal. In a ruling delivered on the 4th November 2014 this Court (Ibrahim & Njoki SCJ) granted the application as prayed.

C. The Application Before The Court 12. This Application was filed on 7th April, 2015 under Certificate of Urgency. On 10th of April, 2015, it was placed before a single judge of the Court, Ibrahim, SCJ, who upon hearing Mr. Ngatia, Counsel for the Applicant granted the following orders, that:a)There be a stay of execution of the Judgement of the Court of Appeal delivered on 27th February 2014 in Mombasa C. A No. 252 of 2005 pending the inter parties hearing and determination of prayer No. 1 of the Application No. 4 of 2015. b)The application be heard on priority basis before the bench mandated to hear review applications for certification.c)The applicant shall serve the application within the next fourteen days.d)Directions to be given by the Registrar in the presences of all parties which shall include orders on the filing and service of written submission.e)Date to be taken before the registry upon directions being given.f)Costs be in the application.

13. On the 8th July 2015, the matter came up for hearing before Ojwang & Ibrahim, SCJ. However, no directions had been given by the Registrar. Upon hearing the parties present, the Court made the following orders:a)The applicant be granted leave to file and serve a further affidavit in response to the 1st 2nd and 3rd respondent affidavit within 10 daysb)The respondent be at liberty to file any response within 10 days of service of the further affidavit.c)4th and 5th respondents granted leave to file an affidavit in response within the next 10 days on the applicant. The 1st 2nd and 3rd respondents be given leave to respond to the 4th and 5th respondent’s affidavit within 10days of service by the 4th and 5th respondent’s.d)All parties to file written submissions within the next 21 days.e)Upon Compliance the matter be mentioned before the Registrar with a view of fixing a hearing date before a five judge bench of the Court.f)Interim orders shall remain in force.

14. Meanwhile, during the pendency of this application, two applications seeking joinder were filed. The first one was filed by one Mr. Kassam Bakari Mwamzandi seeking to be enjoined to the proceedings as an Interested Party, while the second one was filed by the Law Society of Kenya seeking to be admitted as amicus curiae. These application were considered by the Court and in a Ruling delivered on 4th March 2019, they were dismissed by the Court for having been filed prematurely before the Court when the substantive appeal, in which issues they souht to anchor their applications on could be canvassed, had not been filed. The Court was emphatic that no joinder of a party can be allowed in an application seeking review of certification. It stated thus:(13)Hence it is only upon the completion of that forensic evaluation by the Court faced with an application for leave, and upon grant of such leave and the subsequent filing of an appeal that a party can legitimately lodge an application to be enjoined as either an Interested Party and/or Amicus Curiae. For it is at that juncture that a party would have legitimately appreciated the issues before Court and determined what position to take. Before such leave and certification is granted, an application to be enjoined as an Interested Party and/or amicus is made in abstract and in anticipation, which is bad in law.”

15. In the application before the Court, the Applicant framed the following summarised issues for the Court’s determination, which it urged that are matters of general public importance:i)Whether the failure of the judges to reach a unanimous decision of the legal status of the suit premises (i.e whether it is forest land foreshore or Trust Land) before granting orders that led to cancellation of title was a matter of general public importance requiring, further input by this Court.ii)Whether in view of the lack of a unanimous decision as to the legal status of land, Judicial Review proceedings are a suitable mode for litigating, alienation of land and a suit seeking revocation of title.iii)Whether amendments to the Notice of Motion are permissible in law for a period that would extend beyond the six months set out by section 9(3) of the Law Reform Act CAP 26 and Order 53 rule 2 of the Civil Procedure Rules 2010. iv)Whether in view of the provisions of section 12 of the Trust Land Act CAP 288 a litigant can approach a court in a manner other than that set out by the aforesaid section.v)Whether the question of legality of the setting apart of land ought to be addressed by way of a substantive suit to the High Court as provided for by section 12 of the Trust Land Act CAP 288 or by way of Judicial Review.vi)Whether in Judicial Review Proceedings the Court of Appeal can extend the scope of the trials by way of affidavits to a fact finding hearing, by a visit to the locus, at the appeal stage for purposes of collecting new evidence and whether this has given rise to a contradictory position at law on the face of several decision of the courts below as to require either that this Court resolves the issue or remits it to the Court of Appeal with appropriate directions.vii)Whether the decision to cancel title through Judicial Review has given rise to a contradictory position at law on the face of several decisions of the courts below as to require either that this Court resolves the issue or remits it to the Court of Appeal with appropriate directions.viii)Whether as a result of a mere visit, the court could have been in a position to determine what constitutes the foreshore without the benefit of expert opinion by a surveyor or other materials, which determination led to the cancellation of the applicants title.ix)Whether the matters in dispute in the case between the applicant and the respondent raise cardinal issues of law or jurisprudential moment that have a bearing on public interest that require a further input of this Court.x)Whether the Court of Appeal can make a determination of fraud against the respondent at the appellate stage, from reviewing the decision of the superior court and on judicial review proceedings.xi)Whether the Court of Appeal could make a determination of fraud against Hon. Kassim Mwamzandi, a person who was not a party to the judicial Review proceedings without giving him notice or a hearing.xii)Whether the Court of Appeal could make a determination that the title to the suit property ought to have been issued under section 2 of the Registered Land Act CAP 300(now repealed) yet section 117 of the 1963 Constitution (now repealed), section 53(b) of the Trust Land Act and section 21 of the Registration of Titles Act (now repealed), provided for issuance of grants, which grants are not provided under the Registered Land Act CAP 300(now repealed).xiii)Whether the circumstances of this case are unique and transcend the facts of this case as to require to be heard by this Court.

16. It is on the above basis that the application has sought a review of the Court of Appeal decision, its setting aside and an order certifying the matter as involving matters of general public importance and grant of leave to appeal to the Supreme Court.

D. Submissions i) Applicant’s 17. The Applicant, Pati Limited, relied on its Supporting Affidavit dated 2nd April 2015, a Further Affidavit dated 17th July 2015, and Written Submissions dated 11th September 2015. The Supporting Affidavit was sworn by one Allesandro Torriani, its Managing Director, in which he buttressed the grounds in support of the application deposing to the investments loss of upto Kshs. 240, 000, 000 that the Applicant stands to lose if the Court of Appeal Judgement was executed. The Further Affidavit sworn on 17th July 2015 has basically responded to the Replying Affidavit of Jonathan Bowen Havelock.

18. In the Written Submissions, it was submitted that the title to the property in issue was illegally cancelled via Judicial Review Proceedings without a fair trial. That the sanctity of title was ignored. That the question of determining validity of title should be left to the National Land Commission as provided for under the Constitution and not as was done by the Court of Appeal in this matter.

19. Citing cases such as Namudu Christine v Uganda Criminal Application No. 3 of 1999; Muiri Coffee Estate v Kenya Commercial Bank Ltd & Another [2014] eKLR; National Bank of Kenya Ltd v Anaj Warehousing Ltd C.A. Civil Application No. 17 of 2013 (unreported) among others, it is urged, by the Applicant that the intended appeal certainly thus involves matters of general public importance.

20. The Applicant further submitted that the issue whether a title to land can be revoked in public interest and the process to be followed when a title is challenged in public interest are matters of general public importance. Further, that these issues touch on the subject of land rights, public interest, the rights of public bodies to alienate and allocate public land as well as the law and statutory provisions relating to alienation of Trust Land and public land.

21. It is also submitted that Judicial Review Proceedings are public in nature and do not involve contests and/or determination of private rights. That the intended appeal will address the question whether in judicial review proceedings, a Court can go beyond the purview of the proceedings by taking oral evidence or visiting the locus in qou to collect evidence. In this regard, it was argued that the Court of Appeal proceeded to visit the Funzi Island during proceedings and relied on their own observations in arriving at a determination. That this went beyond the purview of the Court of Appeal sitting on a Judicial Review Appeal.

22. It was also submitted that this Court needs to determine what constitutes a high water mark as determined by the Court of Appeal and the remedies in Judicial Review Proceedings together with the determination of contested facts in judicial review proceedings.

23. In a nutshell, the Applicant has urged the Court to grant leave to appeal so that it determines the question whether the sanctity of title has been fundamentally eroded by the decision of the Court of Appeal an whether a title to land can be challenged and cancelled by way of affidavit evidence, without any formal hearing, viva voca evidence, cross examination and admission/inspection of documents? Indeed, the Applicant filed quite intense submissions, for an application for review of denial of certification which should basically focus on the Court of Appeal decision under review. As strenuous as it was, we have endeavoured to read and appreciate those submissions on record and the affidavits.

ii) 1st, 2nd and 3rd Respondents’ 24. On 8th May, 2015 the 1st, 2nd and 3rd Respondents filed a Replying Affidavit dated 30th April 2015 sworn by the 2nd Respondent, Jonathan Bowen Havelock in which they supported the Court of Appeal Ruling. It was deposed that the National Land Commission (NLC) had revoked title deeds of 9 islands situated at Funzi and Gazi in Msambweni Sub-County for alleged fraudulent allocations of public land with mangroves which are protected. That one of the titles revoked was the one subject matter of this case. Hence it was urged that on that basis, this case has been overtaken by events and it is an academic exercise to proceed with its hearing.

25. In their written submissions dated 7th August, 2015 and filed on 11th August 2015, the Respondents submitted that the Applicant had not framed or formulated the matters of general public importance involved in this case in the body of the Application and supporting affidavit. They urged that this was contrary to the principle in Telkom Kenya Ltd v John Ochanda, Application No. 17 of 2014.

26. It was further submitted that the Court of Appeal reached a unanimous decision on the legal status of the suit property, that it was not Trust Land but partially a foreshore and partially forested land. In the event, the legal status of the suit premises relates to a matter of private interest only of the parties specifically arising from the judicial review proceedings and which do not therefore transcend the facts of the case. Curiously though, the Respondents cited a portion of the decision of Githinji, JA in the Judgement of the Court of Appeal and submitted that because the suit property comprises of public land as the Court had held, it is and should be in the interest of the public that the same be preserved for the members of the public. They thus support the present and other decisions of the Court of Appeal which they contend were clear and decisive and no possible confusion or uncertainty of the law has been created by the present decision.

27. Citing the certification principles in the Hermanus case, they submitted that the judgement of the Court of Appeal of 27th February 2014 does not raise any issue of general public importance or cardinal issues of law or otherwise, requiring the same to merit this Court’s appellate jurisdiction. That the Applicant relies majorly on statutory law which has since been repealed and for instance, there is no longer any possibility of any grants being issued in the future by the Commissioner of Lands similar to the Applicant’s. That grants were previously issued under the Registration of Titles Act, which was repealed and that under the new land laws and the Land Registration Act, 2012 in particular, there are only two types of titles: Certificate of Title for freehold land and Certificate of Lease for leasehold land. Hence they submitted that current holders of grants over public land cannot be at risk of having them cancelled or revoked by any court of law unless they have been irregularly or fraudulently issued.

28. They also submitted that some of the questions of law raised by the Applicant were not raised in the Court of Appeal or the Superior Court. Further, that the Applicant had failed to identify contradictory decisions which have been referred to this Honourable Court giving rise to a state of uncertainty in law, hence no cardinal issues of law or jurisprudential moment have been identified to be considered as of general public importance. Hence, they prayed that the application be dismissed in affirmation of the filtering process of determining that only warranted matters come to this Court.

E. Analysis 29. Having considered the record of the Application before us and the rival submissions of the parties, the single issue for consideration before this Court is whether the Applicant has made a case to the satisfaction of this Court to warrant us to review the denial of certification by the Court of Appeal, set it aside and grant the Applicant leave to file its appeal to this Court.

30. The principles for certification, which all parties have alluded to were long settled in the cases of Hermanus Philipus Steyn v. Giovanni Gnecci-Ruscone, Sup. Ct. Civil Application No. 4 of 2012 and Malcolm Bell v. Hon. Daniel Toroitich arap Moi & Another, Sup.Ct. Application No. 1 of 2013.

31. The learned appellate Judges in their Ruling delivered on 20th March 2015 held that the Applicant had not satisfied the principles set out in the above decisions. They were thus emphatic that the Applicant had failed in its application “to identify and concisely set out the elements of general public importance which it attributes to the matter of certification.” That it had “not specifically identified any matter of general public importance, or points of law that are important and substantial or have a significant bearing on public interest or any question that flows from the judgment that forms issues that transcends the facts of the case.”

32. The learned appellate Judges also considered the draft petition of appeal and reached the conclusion that the Applicant only complained about the Judges’ error in revoking the Applicant’s title in Judicial Review proceedings and in failing to appreciate that the prayer for certiorari was made after the statutory period. These they held not to be matters of general public importance.

33. On our part, we agree with the Court of Appeal that an applicant seeking certification should outrightly, in its application, set out with precision the issues it considers to be of general public importance. This Court has time and again cautioned parties against engaging in rhetoric and second guessing where they convolute their pleadings and grounds on the pretext that the Court will filter out what it thinks amounts to matters of general public importance and leave out what is not. For instance, in the application before us, the Court of Appeal only framed three issues for determination. We thus wonder how a matter decided on only three issues will warrant the framing of upto seventeen (17) questions for determination. We find some of the questions verbose and repetitive. We reiterate, as we have severally done, that simplicity and precision in pleading is golden in advocacy.

34. Further, it is now cardinal law that the issues that come to this Court on appeal are those issue that have risen through the judicial hierarchy. This was aptly stated in Peter Oduour Ngoge v Hon. Francis Ole Kaparo, SC Petition 2 of 2012, [para. 29-30] where this Court rendered itself as follows:The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the Court of Appeal, and which that Court has duly exercised and exhausted.In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”

35. It therefore emerges that when a party seeks certification and leave to appeal to the Supreme Court, the questions he/she seeks to bring to this Court must have been subject of consideration/litigation in the High Court and then the Court of Appeal. One cannot frame novel matters as forming matters of general public importance when making an application for leave either in the Court of Appeal or this Court.

36. From the foregoing, we have no hesitation in stating that we find that the majority of the issues that the Applicant has framed as matters of general public importance do not make sense considering the context of the Court of Appeal’s decision and framing of only three issues. In particular, having appreciated the tenor of the record before us, and the three issues that were considered on appeal before the Court of Appeal, we find questions to do with: the failure of the appellate Judges to reach a unanimous decision on the legal status of the suit property; amendment of the Notice of Motion out of the six months’ period; and whether judicial review proceedings are warranted for cancellation of title, are not questions that were considered by the Court of Appeal. Be that as it may, this Court wonders how lack of unanimity in reaching a decision by a collegial court, like the Court of Appeal as was constituted in the present instance, can be a matter subject of litigation. The concept of majority decisions and dissents is a legitimate tenet of judicial work. A decision of a collegial Court will always be that of unanimity or majority and it loses no import because there was a dissenting vote.

37. As regards the substantive issues before the Court of Appeal, while the appellate Court rightfully considered the matter within the four corners of the Hermanus principles, we opine that the learned appellate Judges should have taken a broader perspective on the issue before them. The Hermanus principles are not exclusive. Another certification principle that we find applicable in this matter therefore was set in the case of Town Council Of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR which was rendered just over one month after the Ruling of the Court of Appeal under challenge herein in which this Court stated thus:-(35)From the content of paragraphs 32 and 34, it emerges that while this Court did, in the Hermanus Phillipus Steyn and Malcolm Bell cases, set out an elaborate set of criteria for ascertaining “matters of general public importance” for the purpose of engaging the Court’s jurisdiction, a further criterion has arisen. It may be thus stated. Issues of controversy that emerge from transitional political-economic-social-cum-legal factors, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services, will merit a place in the category of “matters of general public importance” (Emphasis supplied).(38)We have considered the broad issues in the intended appeal in the above context, and found that at play is the question whether the subject matter was indeed Trust Land that could be allocated to private individuals or not? Or whether it was forest land that was not available for allocation. Indeed, a finding on whether the land was public land or not is a matter of general public importance as public land is an important and emotive issue that is fully protected and regulated by the Constitution, 2010. The fact that it might have been allocated under the old legal regime governing land places the matter squarely within the above principle in the Awendo case as a “transitional political-economic-social-cum-legal factor, with impacts on current rights and entitlements of suitors, or on public access to common utilities and services”.

39. We therefore find that it is in the public interest that this Court settles with finality the question whether the land subject of this matter belongs to the Applicant or whether it fraudulently acquired its title. At play also is the balancing between private interests vis-s-vis public interest. This balancing and determination is a matter of general public interests. This Court has indeed previously held that the process of conversion of public land to private land must be clean. That is why in Narok County Government v Livingstone Kunini Ntutu & 2 others [2018] eKLR, while the case was decided as an appeal filed as of right the public importance element as regards public land was captured thus:(88)In that regard, it is our view that the process of conversion of public land or land held in trust to private land has to be beyond reproach. Under the Constitution 2010, this was the rationale behind the formation of the National Land Commission and we note that at the core of this case is the legality of the title to the Suit Land held by 1st Respondent, an individual who obtained it upon its purported excision from public land known as the Masaai Mara National Reserve.(89)The issue of the constitutionality and legality of that title was live both in the High Court and the Court of Appeal. Upon finding that the constitutionality and legality of that title was not clear, the learned judge of the High Court set aside the Consent Judgment and ordered that the matter should go for trial to determine that issue.…(91)Public policy goes to the protection of the public interest which is safeguarded by the national values and principles of governance in Article 10 of the Constitution.(92)In stating as above, we are certain that the allegations of Trust Land being annexed for private purposes have not been determined on merits. The allegation of unconstitutionality and illegality of the title to the suit land therefore raises a serious policy issue that this Court must have regard to in determining whether it has jurisdiction and to be seized of the matter before it and in making the relevant orders.”

40. We are therefore under no illusion that as the crux of this matter is whether the title of the Applicant to the suit land was fraudulently acquired or not, which land has to be determined whether it was public land or not, and whether it was available for allocation or not, this matter raises questions of general public importance. Hence we are inclined to grant certification and allow an appeal to be filed.

41. Before granting the leave sought, we reiterate that not all the seventeen (17) questions framed by the Applicant for determination merits appeal to this Court. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2015] eKLR, this Court in granting leave to appeal proceeded to frame the particular issue upon which the leave was granted and which was to be considered on appeal. Consequently, in this matter, duly guided by the issues that the Court of Appeal considered and for pragmatism, we certify the following as the issue of general public importance which this Court should consider in the intended appeal:Whether the land subject matter of this suit was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land and or public land, it was properly, regularly and legally allocated to Hon. Mwamzandi who later re-allocated it to Pati Limited, the Applicant here.”

42. All parties shall therefore submit on this issue at the hearing of the appeal and how its determination will affect the decision of the Court ofAppeal. The upshot is that this application is for allowing which we hereby do allow in the following terms:i)The Originating Motion application dated 2nd April, 2015 is hereby allowed;ii)The decision of the Court of Appeal delivered on 20th March, 2015, declining leave to appeal to this Court is hereby set aside;iii)It is hereby certified that the intended appeal involves a matter of general public importance;iv)Upon the appeal being duly filed, this matter shall be set down for hearing on the basis of priority.v)The stay order granted by Ibrahim, SCJ on 10th April, 2015 shall subsist pending the filing and hearing of the appeal in the terms of the other Orders herein.vi)Costs of this Application shall be in the cause.Orders accordingly

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST 2019. .....................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE- PRESIDENT OF THE SUPREME COURTM. K. IBRAHIMJUSTICE OF THE SUPREME COURT......................S. C. WANJALAJUSTICE OF THE SUPREME COURT......................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT......................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA