A certification for leave to appeal to the Supreme Court on a matter involving general public importance shall be made at the Court of Appeal in the first instance

Brief facts

The applicant received an adverse judgment at the Environment and Land Court and sought to get a stay of the decision at the Court of Appeal. A single judge bench of the Court of Appeal, dismissed his application for stay. Further aggrieved the applicant approached the Supreme Court with an application that sought to leave to appeal the decision of the Court of Appeal. The applicant sought leave in two respects. The first leave was towards the appeal to the Supreme Court and the second leave was towards the appeal to the Court of Appeal. The latter leave was sought alongside stay of execution of the decision of the Environment and Land Court.

Issues

1. Whether the Supreme Court had the jurisdiction to determine an application for certification for leave for appeal to the Supreme Court where the same had not been lodged and determined by the Court of Appeal.
2. Whether the Civil Procedure Act and its rules were applicable to the Supreme Court.

Held

1. The applicant did not resort to rule 57(1)(b) of the Court of Appeal Rules 2022 by filing a reference to the full bench of the Court of Appeal to vary, discharge or reverse the said decision of the single Judge of the Court of Appeal. The applicants prayer for leave to appeal against the dismissal did not at the first instance fall for the Supreme Courts determination.
2. The applicant had invoked the provisions of section 3A of the Civil Procedure Act, which were inapplicable when moving to the Supreme Court. The Supreme Court was only moved under the Constitution, the Supreme Court Act, and the Supreme Court Rules 2020.
3. The appellate jurisdiction of the court to hear appeals from the Court of Appeal was exercised pursuant to article 163(4)(a) or (b) of the Constitution as read together with sections 15, 15A and 15B of the Supreme Court Act. Those provisions granted the court jurisdiction to hear appeals from the Court of Appeal on matters relating to the interpretation and application of the Constitution and those involving matters certified as matters of general public importance.
4. The application did not indicate which appellate jurisdiction of the court it sought to invoke. To the extent that the applicant sought leave under section 15B(2) of the Supreme Court Act, a certification for leave to appeal to the Supreme Court on a matter involving general public importance shall only be made first at the Court of Appeal, and a party dissatisfied with the Court of Appeal decision may apply to the Supreme Court for review.
5. The application had not distilled and framed any specific questions that transcended the parties so that the matter could be certified as involving issues of general public importance. The applicant did not proffer any explanation or reasons for failure to adhere to this prerequisite step. There was no reason to excuse the omission to enable the court to consider the prayer for leave.
6. The applicant was yet to file the substantive appeal as she only alluded to a draft Memorandum of Appeal as annexed to the affidavit in support of the application. The Supreme Court Act, and the Supreme Court Rules provided for the institution of an appeal to the Supreme Court, including the form of the petition of appeal. Pursuant to rule 36 of the Supreme Court Rules, a person intending to make an appeal to the court, was to file a notice of appeal within fourteen days from the date of judgment or ruling, and file it in the first instance with the registrar of the court from which the appeal originated and upon filing, transmit a copy of the notice to the Supreme Court registry.
7. The Notice of Appeal annexed to the application, though indicated to have been filed on March 30, 2023 has not been signed and sealed by the Registrar of the Court of Appeal. There was no evidence of transmission of the same to the Supreme Court. The failure to file or transmit a notice of appeal was not mandatory in relation to an appeal on a matter of general public importance, and could as well be filed upon grant of certification. It was not indicated which of the Supreme Courts jurisdiction the applicant sought to invoke.

Circumstances under which the Supreme Court would review its own decisions.

Brief facts

The matter arose from a dispute of the division of 3 constituencies within Garissa County. The matter was resolved by the Supreme Court On June 16, 2023. The applicant was aggrieved by the findings of the court and filed the instant application for review in which he sought for the Supreme Court to vary the judgment or set it aside. 

The respondents opposed the application on grounds that the applicant was attempting to relitigate the matter. They contended that the applicant had not met the threshold for the Supreme Court to review its own decision. 

Issues

Under what circumstances would the Supreme Court review its own judgments, rulings or orders?

Held

1. As a general rule, the Supreme Court had no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the court, may upon application by a party or on its own motion, review, any of its judgments, rulings, or orders, in exceptional circumstances, so as to meet the ends of justice. The exceptional circumstances were limited to instances where:
   1. the judgment, ruling, or order was obtained, by fraud or deceit;
   2. the judgment, ruling, or order was a nullity, such as, when the court itself was not competent;
   3. the court was misled into giving judgment, ruling, or order, under a mistaken belief that the parties had consented thereto;
   4. the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.
2. The applicant had not demonstrated how the judgment delivered on June 16, 2023 that he sought to have impugned met the exceptional circumstances above. Ground 3 of the motion introduced a new cause of action. Review could never issue in such circumstances. The application for review did not meet the requisite threshold.
3. The applicant had disguised his application as a review but it was in fact an appeal. An application for review, was not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party was unhappy with the outcome.
4. The Supreme Court lacked jurisdiction to entertain a second appeal over its own judgment. Once the court had determined an appeal from the Court of Appeal, it became functus officio, and such a judgment stood until it was departed from in a future case or reviewed with the exceptional circumstances outlined earlier.

A mere apprehension of a miscarriage of justice is not a proper basis for granting certification for an appeal to the Supreme Court

Brief facts

The originating motion sought among other orders: the review/ setting aside the ruling, orders and decision of the Court of Appeal in Civil Application No. E089 of 2021; the certification of the matter as fit for determination by the court against the decision and judgment of the Court of Appeal in C.A. No. 10 of 2019. The applicant contended that the Court of Appeals finding and judgment in Civil Appeal No. 10 of 2019 which was based on an additional principle/ingredient of defamation had no foundation in law; that was, the requirement for evidence by a third party to establish injury to a persons reputation. According to the applicant, the requirement, albeit erroneous, had often been applied by the courts below and therefore the intended appeal presented the Supreme Court with an opportunity to resolve the anomaly and error. 

The applicant further contended that the requirement for evidence by a third party violated and ousted the applicants inherent right to dignity. The applicant also found that despite appreciating that the 1^st respondent had admitted to the four known legal principles/ingredients of defamation, the Court of Appeal found the applicant had not established the erroneous additional principle; and the effect of such a finding was that it altered the entire body of law relating to admissions. The respondents contended that: the application had not met the test for certification as raising matters of general public importance. 

Issues

1. Whether a mere apprehension of a miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court. 

Held

1. The applicant had not specified whether the application was made under article 163(4)(a) or (b) of the Constitution of Kenya, 2010, however, the court took cognizance of the fact that the substance of the application and the orders sought related to article 163(4)(b) which granted the court jurisdiction to hear appeals from the Court of Appeal on matters of general public importance. 
2. The questions set out by the applicant as matters of general public importance were whether third party evidence was a prerequisite in defamation, and whether there was a violation of the applicants rights under articles 25(c) and 28 of the Constitution, which were factual issues specific to the parties circumstances and did not transcend the parties dispute.
3. The applicant had not established any contradiction or uncertainty in law arising from the Court of Appeal judgment in respect to its decision on the ingredients of the tort of defamation, and the attendant law that required settlement by the court. On the alleged violation of articles 25(c), 28, 164 and 166 of the Constitution by the Court of Appeal, the same was not subject to the courts jurisdiction under article 163(4)(b) of the Constitution.
4. A mere apprehension of a miscarriage of justice, was a matter most apt for resolution in the superior courts below, and was not a proper basis for granting certification for an appeal to the Supreme Court. 
5. From a perusal of the impugned Court of Appeal ruling, the Court of Appeal correctly interrogated the applicants proposed issues under the threshold set by the court in Hermanus Phillipus Steyn case.