Requirements for a matter to be certified as being of general public importance

Brief facts

The application sought the review of the ruling of the Court of Appeal denying certification of the intended appeal as one involving matters of general public importance and leave to amend the notice of appeal. The applicants urged that the intended appeal raised the following questions of general public importance; conflicting case law from the Court of Appeal as to whether the in duplum principle applied retrospectively; applicability of section 4(4) and 19 of the Limitation of Actions Act prescribing a 6-year limitation period on interest on a guaranteed debt or a consent amounting to a preliminary decree; whether a guarantor assumed primary liability for the entire debt contrary to the fixed sum expressed in the contract; whether it was a clog and fetter on the equity of redemption for a chargee to charge unconscionable interest; whether a chargee was a constructive trustee of surplus monies following sale of charged property; what interest, between court rates, the banks fixed deposit rates or commercial rates should be applied to surplus monies held in trust by a chargor who refused to account for and refund the excess. 

Issues

1. What were the requirements for a matter to be certified as being of general public importance? 
2. Whether opting for the review of a Court of Appeal decision amounted to forfeiting the right of appeal over the decision.

Held

1. For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest. 
2. The motion lacked merit as the applicant had not satisfactorily highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeals ruling denying certification. Neither had the applicant raised any substantial question of law, the determination of which, would have a significant bearing on the public interest. In any event, the applicant opted for review of the Court of Appeals judgment, in effect forfeiting his right of appeal at that instance. 
3. The court had no jurisdiction to review certification of an intended appeal, where no right of appeal lay in the first instance. The applicants prayer to amend the notice of appeal dated August 8, 2019 was moot. 

Conditions that an appellant that sought certification before the Court of Appeal needed to satisfy to warrant an appeal to the Supreme Court.

Brief facts

The appellant had filed an application for review of the ruling of the Court of Appeal that denied the applicant certification to file an appeal before the Supreme Court. At the High Court the matter revolved a question on the interest payable form a transaction between the applicant and an investment adviser and stockbroker. The Court of Appeal agreed with the High Court that the 1^st respondent failed to invest the funds in question in treasury bonds as agreed between the parties; however, the Court of Appeal differed in the award for damages. Aggrieved, the applicant sought to appeal at the Supreme Court.

The Court of Appeal denied its application for certification on grounds that the issues raised by the applicant did not transcend the applicants personal interests; and that they were by their very nature, ordinary issues that did not rise beyond the business relationship between the applicant and 1^st respondent. The applicant filed the instant application seeking to review the decision of the Court of Appeal. 

Issues

What conditions did an appellant that sought certification before the Court of Appeal need to satisfy to warrant an appeal to the Supreme Court?

Held

1. An intending appellant that sought grant of certification before the Court of Appeal must demonstrate the following to warrant certification:
   1. that the issue to be canvassed transcended the circumstances of the particular case and had a significant bearing on public interest;
   2. that the appeal raised a substantial point of law the determination of which would have a significant bearing on public interest;
   3. that the question for determination had risen through the judicial hierarchy and had been the subject of judicial determination; and
   4. that there had been uncertainty in the law which required resolution.
2. The mere apprehension of a miscarriage of justice and determinations of fact in contests between parties were not, by themselves, a basis for granting certification to appeal to the Supreme Court.
3. None of the matters sought to be raised in the intended appeal transcended the interests of the parties herein. The determination of any or all of those issues would not affect any other group of persons or the public in general. The grounds entailed determinations of facts by construing the terms and conditions of a contract between the applicant and the 1^st respondent.

Conditions under which the Supreme Court would allow one to adduce additional evidence.

Brief facts

The applicant (an interested party in the suit) sought leave to adduce additional evidence in support of the applicants replying affidavit. The applicant contended that the applicant was joined at the final stage of appeal (before the Supreme Court) and therefore had no opportunity to produce evidence before the superior courts below. The applicant further contended that the evidence in question was credible, authentic, was directly relevant to the issues presented for determination, and would have a significant impact on the final verdict of the Supreme Court.

The respondent opposed the application on grounds that the applicant was not a primary party to the suit and as such could neither frame new issues nor adduce additional evidence. The respondent claimed that the applicant had also failed to meet the principles set under case law to adduce additional evidence. 

Issues

Under what conditions would the Supreme Court allow an applicant to adduce additional evidence?

Held

1. A number of the documents the applicant sought leave to adduce as additional evidence were part of the record.  The card transaction flow chart illustration that the applicant sought to introduce as additional evidence was repetitive of the respondents explanation and almost a replica of the pictorial illustrations in the petition. The other documents that the applicant sought to introduce as additional evidence were in the public domain. 
2. In exceptional circumstances and on a case-by-case basis, the Supreme Court could exercise its discretion and call for, and allow additional evidence to be adduced. The applicant was duty bound to satisfy all the elements under section 20 of the Supreme Court Act, 2011; rule 26 of the Supreme Court Rules, 2020; and the principles set out in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohammad & 4 others [2018] eKLR
3. The Supreme Court would only allow additional evidence on a case-by-case basis and even then, sparingly and with abundant caution. The additional evidence sought to be introduced was either part of the record before the Supreme Court or in the public domain both locally and internationally. 
4. Had the applicants advocates on record exercised due diligence and taken time to peruse the Supreme Courts record, they would have spared the courts judicial time as well as their clients and other parties time and resources. None of the conditions for the grant of leave to adduce additional evidence had been satisfied. The instant application was frivolous and an abuse of court process.

Supreme Court declines to issue an order staying proceedings since the substance of the appeal was before the court for determination.

Brief facts

The instant matter was mentioned on September 22, 2023 before the Deputy Registrar of the Supreme Court for compliance and was subsequently set down for hearing on October 5, 2023, for determination of all the questions raised in the appeal. One week before the hearing, the applicant sought orders setting aside the decisions by the Court of Appeal in Civil Appeals No. 63 and 124 of 2018, as well as the directions issued by the Employment and Labour Relations Court on December 1, 2017. 

Issues

1. Under what circumstances would the Supreme Court issue an order staying proceedings?
2. Whether the Supreme Court could issue an order staying proceedings where the substance of the appeal was before the court for determination. 

Held

1. The grant of an order for stay of proceedings was to be entertained only in deserving cases as it impacted the right to expeditious trial. Such orders were discretionary in nature, exercisable by the court upon consideration of the facts and circumstances of each case.
2. The Supreme Court was mindful of the fact that the orders sought by the applicant seeking stay of proceedings orders had been sought too close to the hearing date of the applicants appeal. The orders that the applicant sought to stay were also issued on February 17, 2023 and the court did not understand why a stay was being sought a week before the hearing of the appeal. 
3. The Supreme Courts discretion was tilted towards not issuing interlocutory orders in the nature of stay of proceedings whose effect may not ultimately be of benefit to the parties since the substance of the appeal was now before the court for determination.

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 decisions?

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 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 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 to appeal to the Supreme Court where it 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.