John walter Onyango Otieno, Erastus Mwaniki Githinji, Martha Karambu Koome
Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone  eKLR
COURT OF APPEAL SETS THE PROCEDURE FOR CERTIFICATION OF A MATTER TO BE HEARD BY THE SUPREME COURT OF KENYA
Reported by Sylvie Nyamunga
i. Procedure for making an application for a certificate that a matter or matters of general public importance is or are involved in the intended appeal to the Supreme Court against the judgment and orders of the Court of Appeal
ii. Constitutional test to be applied when considering certification of a matter
iii. What constitutes a matter of general public importance
Criminal Practice and Procedure - procedure for application for certification from the Court of Appeal that a matter can be heard in the Supreme Court-whether a matter is of general public importance-what constitutes a matter of general public importance- constitutional test to be applied in determination- Article 163(4) (b) of the Constitution of Kenya, 2010- Section 16(3) of the Supreme Court Act 2011
1.The Supreme Court Rules, 2011 are silent on whether or not an application for certification should first be made in the Court of Appeal. Currently, there are no rules of procedure regulating the manner in which an application for certification should be filed and handled, the reason being that until the creation of the Supreme Court by the Constitution of Kenya, 2010 the Court of Appeal was hierarchically the highest judicial organ.
2. Until rules are made to specifically prescribe a different procedure for making an application for certification to the Court of Appeal, such an application should be made by a notice of motion supported by one or more affidavits in accordance with the practice of the Court.
3. The Constitutional test is that a matter of general public importance must be involved in the case. When considering this test, care should be taken to ensure that the Court does not apply any other test which is not expressly provided. The test to be applied is not universal. It may vary from jurisdiction to jurisdiction.
4. Article 163(4) (b) of the Constitution of Kenya, 2010 does not refer to questions of law or questions of law of great public importance or to point of law of exceptional public importance or to a matter of great general public importance. It merely refers to a matter. The Article does not also distinguish between criminal and civil matters. Although the expression ‘a matter of general public importance’ used in the Article is ex facie susceptible of liberal interpretation as opposed to restrictive interpretation, the true meaning of the phrase will ultimately depend on the construction that the Supreme Court will give to the phraseology.
5. The requirement for certification by both the Court of Appeal and the Supreme Court is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.
6. The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance. Where the matter involves a point of law, the applicant must demonstrate that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified so as to enable the courts to administer that law, not only in the case at hand, but also in such cases in future . It is not enough to show that a difficult question of law arose. It must be an important question of law.
7. The matter sought to be certified must arise from determination of the Court of Appeal in the case and not out of the argument or discussions at the hearing. There should exist between the parties a matter in actual controversy for consideration of the Supreme Court as a living issue and not a hypothetical case.
8. Section 16(3) of the Supreme Court Act 2011 lays down a principle of law, in essence, that the Supreme Court should not entertain interlocutory appeals which have no final effect on the substantive dispute between the parties except in exceptional cases. That principle also binds this Court when considering applications for certification. Thus, until such time that the Supreme Court determines that it has no jurisdiction to entertain interlocutory appeals, if at all; the Court of Appeal should grant a certificate to appeal to the Supreme Court from interlocutory rulings of the Court of Appeal, only in exceptional cases.
The court declined to grant a certificate and dismissed the application with costs to the respondent.