[2015] KECA 401 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KOOME, AZANGALALA, KANTAI, JJ.A)

CIVIL APPLICATION SUP 2 OF 2015

BETWEEN

STEPHEN WANYEE ROKI……………………………………………………………..….APPLICANT

AND

K-REP BANK LIMITED………………………………………………………………1STRESPONDENT

CITY COUNCIL OF NAIROBI………………………………………….…….……2NDRESPONDENT

DAVID WAWERU ……………………………...………………………………….…..3RDRESPONDENT

(Being an application for leave to appeal to the Supreme Court against the ruling of the Court of Appeal of Nairobi (Nambuye, Mwilu & M’Inoti, JJ.A) delivered on the 13thFebruary 2015)

in

COURT OF APPEAL CIVIL APPLICATION NO. NAI 264 OF 2013 (UR 192/ 2013)

*************

RULING OF THE COURT

[1]The applicant, Stephen Wanyee Roki, filed a Notice of Motion under Article163 (4) (b) of the Constitution and Rule 42 of the Court of Appeal Rules. The applicant is seeking for certification that matters of general public importance regarding the ruling of this Court issued on 13th February, 2015 in Civil Application No. Nai 264 of 2013, so as to file an appeal before the Supreme Court.

[2]The brief facts discernable from the scanty record that is before us are asfollows;- on or about the year 2005, K – Rep Bank, the 1st respondent, advanced the applicant an overdraft facility of Kshs 1. 3 million which was secured by a charge over the applicants plots at Dagoretti/Riruta, Nairobi. The loan proceeds were supposed to be utilized to execute a contract of construction of a school that the applicant was awarded through tender by the then City Council of Nairobi, the 2nd respondent. Unfortunately the applicant failed to service the loan as he alleged the City Council failed to honor the contract agreement and his property was sold in an auction by the 1st respondent in exercise of the banks’ statutory of sale. The property was bought by the 3rd respondent.

[3]The applicant filed a suit against the respondents challenging the aforesaid sale and claiming that the 1st respondent sold his property irregularly and below the market price; the 2nd respondent was faulted for failure to facilitate timely payment of its obligations as per the contract. The 3rd respondent was sued as the buyer of the suit property. Contemporaneously with the filing of the suit, the applicant filed an application for injunction pending the hearing and determination of the main suit. Even as the applicant seeks to pursue an interlocutory matter before the Supreme Court, we are not certain whether the main suit has been prosecuted before the High Court. Be that as it may, the application for injunction was dismissed by Njagi J., by a ruling dated 20th November 2012, for reasons that the applicant’s case failed to meet the set threshold for the Court to grant an order of injunction.

[4]Aggrieved by the order dismissing the application for injunction, the applicant filed a Notice of Appeal, and sought for the same orders of injunction under Rule 5 (2) (b) of the Court of Appeal Rules. That application was heard by Nambuye, Mwilu & M’Inoti, JJ.A., who dismissed it vide a ruling dated 13th February 2015, on the grounds that there was no arguable appeal and even if there was doubt, the appeal was not going to be rendered nugatory as an award of damages would suffice in the circumstances of the matter. We are not also certain whether the applicant’s substantive appeal has been filed let alone determined.

[5]The applicant is still unrelenting, instead of pursuing the substantive suit before the High Court, or even the appeal before this Court, he has invoked the provisions of Article 163 (4) (b) of the Constitution seeking for certification and leave to appeal before the Supreme Court as he contends that his intended appeal raises matters of general public importance. This is the application that is before us and it is predicated on the grounds that the applicant has an inherent right to be afforded a fair hearing under Article 50 of the Constitution. He therefore contends that the sale of his property that was charged to the bank to secure the loan was ancestral land inherited from his grandparents. A sale of such a property has immense sentimental value that will cause him irreparable loss, which in his view is a matter of general public importance that should be certified for determination by the Supreme Court. Moreover the land is currently worth over Kshs 20 million and was sold in a public auction for a mere loan of Kshs 1. 3 million; the sale was below the market price; lastly the judges of the two superior courts failed to consider that the applicant failed to service the loan due to failure by the 2nd respondent to honor the terms of the contract.

[6]Under Appeal to the Supreme Court –

“(a) as of right in any case involving the interpretation or application of this constitution; and

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, by Article 163(5), such a certification may be reviewed by the Supreme Court and either affirmed, varied or overturned.

[7]It is also necessary to state that although a certificate can be sought either from the Supreme Court or from this Court, the Supreme Court has held that it is a good practice to originate the application in the Court of Appeal. See Sum Model Industries Limited v. Industrial and Commercial Development Corporation–SC Civil Application No. 1 of 2011 (UR).

[8]Before a matter is certified for an appeal before the Supreme Court, the constitutional requirement that a matter of general public importance exists must be demonstrated by the applicant to the satisfaction of this court. Are there matters of general public importance raised in the ruling of 13th February 2015?

This was an interlocutory application for injunction after the applicant’s property was sold in a public auction after the applicant failed to service the loan due to the 2nd respondent. Both the main suit and the appeal are pending determination. What the applicant seeks to be certified is application for an order arising from an interlocutory application for injunction. In Peter Oduor Ngoge v. Hon. FrancisOle Kaparo & 5 Others – Supreme Court Petition No. 2 of 2012– [2012] eKLR, the Supreme Court interpreted its appellate jurisdiction thus:

“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.”

[9]Granted that the applicant has not prosecuted his case before the High Court, we do not understand what he meant by his statement that he was denied a right to a fair hearing in contravention of Article 50 of the constitution. This is a mere allegation which is not at all supported by the record. The applicant’s application for injunction was heard and determined by the High Court; he filed a Notice of Appeal and his application before the Court of Appeal seeking for injunction was also heard and determined within a reasonable time. The fact that the applicant was unsuccessful in his bid to obtain injunctive orders does not mean that he was denied a fair hearing.

[10]The key issue and the only one in this application in our view is whether the applicant has demonstrated a matter of general public importance that can warrant a certification. A matter of general public importance can only arise from a definitive determination of a matter by the Court of Appeal of substantive grey areas of law or policy that cut across a broad spectrum of the members of public. The role or mandate of the Supreme Court is clearly spelt out in the Constitution. This is the Apex Court with a relatively small number of cases that are recognized as raising matters of general public importance. In the instant case, the law on the creation of charges/ mortgages or contract is clear, nay it is not even being challenged, what the applicant is challenging is the sale by public auction of a property he voluntarily offered as security for a commercial loan.

[11]The issues in controversy have not been determined to finality by the High Court and the Court of Appeal. The judges declined to issue an injunction for reasons stated in their respective rulings principally because the applicant willingly charged his property for a commercial loan, and by doing so he must have overlooked his sentimental attachment to the suit property. He cannot now turn around and seek to escape his obligations under the charge to claim sentimental interests. On the property having been sold below the market price, that issue has not been tried and determined. It is therefore not surprising that the applicant was not able to formulate any issues of law that constitute matter (s) of general public importance for certification as set out in the case of; - Hermanus Philipus Steyn Vs. Giovanni Gnecchi- RusconeApplication Sup 4 of 2012 (UR).

[12]In the upshot we find no merit in this application which we order dismissed with costs to the respondents.

Dated and delivered at Nairobi this 25thday of September, 2015.

M. K. KOOME

………………….……

JUDGE OF APPEAL

F. AZANGALALA

………………….……

JUDGE OF APPEAL

S. ole KANTAI

………………….……

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR

/mgkm