Johnson Githaiga Mwaniki v Daniel Githaiga Mwaniki

Petition 33 of 2014

Supreme Court of the Republic of Kenya

K. H. Rawal, DCJ; P.K. Tunoi, J.B. Ojwang, S.C Wanjala & N. S. Ndungu, SCJJ

December 4, 2015

Reported by Kipkemoi Sang

Brief facts

The Respondent had illegally attempted to acquire public land.  It was alleged that angry members of public demolished the timber structures which the Respondent had put on the said property. The plot constituted part of trust land under the Repealed Constitution, and so it fell under the jurisdiction of the County Council of Nyeri, now replaced by the County Government of Nyeri. The Respondent had reported the incident of damage to his property to the Police which led to the arrest of nine persons who were charged and convicted of malicious damage to property. On Appeal to the other Courts the conviction was quashed and sentence set aside.

The Applicant later instituted civil proceedings against the Respondent seeking compensation for the destroyed structure. The judgment in both the High Court and Court of Appeal was entered against the Applicant. On that basis the Applicant sought leave of court to file an appeal in the Supreme Court fronting an argument that his claim was a matter of general public importance.  

Issue

Whether the intended appeal raised matters of general public importance

Constitutional Law- public interest- matters of public interest- whether the intended appeal raised matters of general public importance

Held

1. A Matter of general public importance should be one of exceptional public significance, in that: firstly, it goes substantially beyond the facts of the case, and the    appropriate test was not whether there was a point of law, but whether the point of law transcends the facts of the individual case. Secondly, the law in question should stand in a state of uncertainty- so that it is for the common good that such law be clarified so as to enable the Courts to administer the law.
2. Where the matter in respect of which certification was sought raised a point of law, the intending appellant should demonstrate that such a point was a substantial one, the determination of which would have a significant bearing on the public interest.
3. The instance case arose from a criminal matter involving the Applicant as one of the accused persons, on a charge of malicious damage to property. The criminal case subsequently gave rise to a civil matter between the parties.  The Respondent sought monetary compensation from the Applicant and two other persons who had been accused of malicious damage to property. The issues raised in the intended appeal did not in any way transcended the circumstances of the case and as such it was incumbent upon the Applicant to demonstrate that the issue to be raised was a substantial one, the determination of which would have a significant bearing on the public interest.
4. A matter of general public importance warranting the exercise of appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences were substantial, broad-based, transcending the litigation-interest of the parties, and bearing upon the public interest. As the categories constituting public interest were not closed, the burden fell on the intending appellant to demonstrate that the matter in question carried specific elements of real public interest and concerns. The issues to be raised in the intended appeal were confined to the parties to the suit, and did not in any way transcend the interests and circumstances of the parties.
5. The standing principle in Hermanus case was that; the intending applicant had an obligation to identify, and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought. The Applicant was required to meet the terms of yet another governing principle set out in Hermanus case, namely: that the question or questions of law should have arisen in the Court or Courts below, and should have been the subject of judicial determination. In the instant case, none of those issues manifested the nature of a matter of general public importance. The issues arising in the intended appeal had been sufficiently determined by the Courts within the established hierarchy.

Appeal dismissed. Applicant to bear the costs