The test for granting certification to appeal to the Supreme Court as a Court of last resort is different from the test of granting leave to appeal to an intermediate Court
Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
Motion 42 & 43 of 2014
Supreme Court of Kenya
W Mutunga; CJ, KH Rawal DCJ, MK Ibrahim, JB Ojwang & NS Ndungu, SCJJ
May 19, 2016
Reported by Halonyere Andrew & Nowamani Sandrah
On 12th April, 1989 Kenya Commercial Bank (KCB) granted certain financial facilities to a company called Benjoh Amalgamated Limited, with Muiri Coffee Estate Limited acting as a guarantor. Benjoh Amalgamated and Muiri Coffee thereafter defaulted in repayment. On default, KCB instructed auctioneers to realize the securities held under the transaction. The auction to realize the securities was scheduled, however Benjoh Amalgamated and Muiri Coffee launched proceedings against the 1st applicant in the High Court. Consent was entered for payment. There was a default, and KCB instructed auctioneers to move and re-advertise the properties for sale. Meanwhile, Muiri Coffee and Amalgamated Co. filed some other cases before the High Court, seeking an injunction restraining the sale. Those suits were dismissed.
The two parties then reverted to the High Court and filed an application seeking to set aside the consent. The application was allowed. KCB was aggrieved by that decision and appealed to the Court of Appeal. The Appellate Court allowed the appeal thereby reinstating the consent. The dispute between the two sets of parties continued, resulting in yet other suits before the High Court In HCCC No. 1576 of 1999
It emerged that even the Appellate Court’s Ruling on the consent, had been challenged and in a decision rendered, the High Court recognized the question was now res judicata, having been resolved by the highest Court of the land in which was the Court of Appeal. The said High Court determination was appealed before Court of Appeal. The Court of Appeal held that all the issues that had been raised before the High Court were res judicata and that led to the appeal before the Supreme Court.
Whether the matter as certified by the Court of Appeal, had met all the principles for certifying a matter as one of general public importance
Was the application before the Court of Appeal, seeking certification for further appeal, barred by the doctrine of res judicata?
Whether the test for granting certification to appeal to the Supreme Court as a Court of last resort was different from the test of granting leave to appeal to an intermediate Court.
whether the Respondent’s intended appeal involved matters that had been resolved before the promulgation of the Constitution of Kenya 2010, so as to be barred by the doctrine of finality of litigation, and whether in the circumstances the Supreme Court lacked jurisdiction.
Whether the Court of Appeal had acted per incuriam, in certifying the cause as one involving a matter of general public importance, and granting leave to appeal to the Supreme Court, where a different Bench of that same Court had denied leave.
Civil practice and procedure – appeal to the Supreme Court – certification of an appeal to the Supreme Court – whether the test for granting certification to appeal to the Supreme Court was different from the test of granting leave to appeal to an intermediate Court
Civil practice and procedure - re judicata - whether the application before the court of Appeal seeking certification for further appeal was barred by the doctrine of res judicata. Constitution of Kenya, 2010, Articles 163 (3) and (4)
Civil practice and procedure - appeals- appeals to the Supreme Court-circumstances under which the appeals would be granted to the supreme court- whether the matter brought before the court was one that raised an issue of general importance to raise the warrant of issuance of appeal to the supreme court- whether the Court of Appeal acted per incurium in certifying a a cause as one involving a matter of general public importance, and granting leave to appeal to the Supreme Court, where a different Bench of the Court of Appeal had denied leave - Civil Procedure Rules
Relevant provisions of the law
The constitution of Kenya, 2010
Article 163(3) (b) (i)
Article 163(4) (a) or (b)
It was trite law that in an application for certification and grant of leave to appeal to the Supreme Court, the decisive factor was not whether the Appellate Court decision was perceived as right or wrong by any of the parties, but rather, whether the intended appeal raised “a matter of general public importance”.
The test for granting certification to appeal to the Supreme Court as a Court of last resort was different from the test of granting leave to appeal to an intermediate Court for example from the High Court to the Court of Appeal. The primary purpose of the appeal was correcting injustices and errors of fact or law and the general test was whether the appeal had realistic chances of succeeding. If that test was met, leave to appeal would be given as a matter of course. In contrast, the requirement for certification by both the Court of Appeal and the Supreme Court was a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.
The importance of the record of a Court, particularly for a Court of record, such as the High Court, could not be gainsaid. The record of a Court of record was a fundamental reference point in the administration of justice. There was no fault with the Court of Appeal Ruling granting certification and its observations and findings, as regards the vital question of the availability of a record of a Court of record. The Court of Appeal in granting leave reinforced the public-interest element in the issue that speaks to its nature as a matter of general public importance, when it held so.
The issue of the character of superior courts as courts of record and the consequences of absence or incompleteness of the record, where rights were determined with finality on the basis of what ought to be on that very record was neither shallow nor idle. Rather, formulated in the precise manner in which it was before the Supreme Court, the issue appeared to to have far-reaching consequences and implications on the integrity of the adjudicative processes of the Courts.
Res judicata was a doctrine of substantive law, its essence being that once the legal rights of parties had been judicially determined, such edict stood as a conclusive statement as to those rights. It would appear that the doctrine of res judicata was to apply in respect of matters of all categories, including issues of constitutional rights.
The doctrine of res judicata in effect, allowed a litigant only one bite at the cherry. It prevented a litigant or persons claiming under the same title from returning to Court to claim further reliefs not claimed in the earlier action. It was a doctrine that served the cause of order and efficacy in the adjudication process. The doctrine prevented a multiplicity of suits, which would ordinarily clog the Courts apart from occasioning unnecessary costs to the parties and it ensured that litigation came to an end and the verdict duly translated into fruit for one party and liability for another party conclusively.
Contrary to the respondent’s argument that the principle of resjudicata was not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata was not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entailed more than procedural technicality, and lay on the plane of a substantive legal concept.
Whenever the question of res judicata was raised, a Court would look at the decision claimed to have settled the issues in question, the entire pleadings and record of that previous case and the instant case, to ascertain the issues determined in the previous case and whether those were the same in the subsequent case. The Court should ascertain whether the parties were the same, or were litigating under the same title and whether the previous case was determined by a Court of competent jurisdiction.
The position advanced by the respondent, and sustained by the Court of Appeal was inconsistent with the principle that an application for certification first came before the Court of Appeal as the court seized of the facts of the matter, and only thereafter does an aggrieved party come to the Supreme Court seeking a review.
The crucial doctrine of res Judicata, excludes the possibility that a differing Bench of the Appellate Court from the one that entertained the main cause, would consider the certification question emanating from the same parties, and in the same cause of action. It was clear that the Court of Appeal was not considering different application-issues.The applications rested on one foundation; and they were seeking the same relief, and were founded upon the very same cause of action. Hence the proper Bench to entertain that matter was one and the same.
The Supreme Court of Kenya was created upon the promulgation of the Constitution of Kenya, 2010. Before then, the Court of Appeal was the final Court of the land. The Supreme Court, in exercise of its appellate jurisdiction as provided in the Constitution was forward looking. The Court could only hear appeals from the Court of Appeal in matters that were not concluded before 27th August, 2010. Any matters that had been determined by the Appellate Court before that time, had attained their finality, and were not appealable to the Supreme Court.
The issue of the consent as between the parties in the matter before the Court was determined by two separate Benches of the final Court (Court of Appeal) on 10th March, 1998 and on 31st March, 2006. The two decisions were rendered before the promulgation of the Constitution 2010, that was, before the establishment of the Supreme Court. Consequently, they were final and binding and they could not be re-opened by the Supreme Court.
In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was that the chain of Courts in the constitutional set-up, running up to the Court of Appeal had 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, would deserve the further input of the Supreme Court.
The Court of Appeal had acted per incuriam, in certifying the cause as one involving a matter of general public importance and granting leave to appeal to the Supreme Court where a different Bench of that same Court had denied leave. The Supreme Court by the terms of the Constitution was not to serve as just another layer in the appellate court structure, it had specific functions that were well defined.
Application partly allowed
Originating Motion No. 42 of 2014 dated 21st November, 2014 as consolidated with Originating Motion No. 43 of 2014 dated 21st November, 2014 were allowed.
The certification of the Court of Appeal granted in Application Sup. No. 20 of 2013 on 7th November, 2014 was set aside.
The Petition of Appeal already filed by the respondent in the Supreme Court, being Appeal No. 35 of 2014, was struck out, as its sub-strum, namely the certification granted by the Court of Appeal, was spent.
Each party to bear own costs.
1. ET v Attorney-General & another  1 KLR 129 – (Followed)
2. Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone Civil Application No 4 of 2012– (Considered)
3. Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002;  UGCC3 – (Followed)
4. Macharia & another v Kenya Commercial Bank Limited & 2 others  3 KLR 199 – (Followed)
5. Malcolm Bell v Daniel Toroitich arap Moi & another Application No 1 of 2013 - (Mentioned)
6. Menginya Salim Murgani v Kenya Revenue Authority, Civil Application No 4 of 2014- (Followed)
7. Murgani, Menginya Salim v Kenya Revenue Authority Civil Application No Sup 4 of 2013- (Mentioned)
8. Nathif Jama Adam v Abdikhaim Osman Mohammed & others Petition No 13 of 2014– (Explained)
9. Ndegwa, Bernard Mugo v James Nderitu Githae & 2 others Civil Case No 101 of 2006 – (Followed)
10. Ndutu & 6000 others v Kenya Breweries Ltd & another  2 KLR 804– (Relied Upon)
11. Ngoge v Kaparo & 5 others  2 KLR 419– (Followed)
12. Njiroine, Daniel Shumari v Naliaka Maroro Motion No 5 of 2013 – (Explained)
13. Omega Chemical Industries Limited v Barclays Bank of Kenya Limited, Application No 6 of 2013 – (Approved)
14. Otuke, Silas Make v Attorney-General & 3 others Petition No 44 of 2013 – (Relied Upon)
15. Ronald Reagan Okumu v Attorney- General, Miscellaneous Application No 0063 of 2002, High Court HCT 02 CV MA 063 of 2002 – (Considered)
16. Sum Model Industries Ltd v Industrial & Commercial development Corporation Civil Application No 1 of 2011 – (Approved)
1. Henderson v Henderson (1843) 67 ER 313;  3 Hare 100 – (Applied)
1. Constitution of Kenya, 1963 Repealed section 75 – (Interpreted)
2. Constitution of Kenya, 2010 articles 47, 163 (3) (b) (i) (4) (a) (b) – (Interpreted)
3. Uganda Constitution, articles 50, 137 – (Interpreted)
Texts & Journals
1. Mohan, M., (Ed) (2011) Mulla, Code of Civil Procedure, Wadhwa: LexisNexis Butterworth 18th Edn
1. Mr Oraro, SC and Nyachoti for the Applicant
2. Mr Mansur for the 2nd Applicant
3. Mr Meenye for the KCB
4. Mr Muite for the Respondent