REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

AT NAIROBI

(Coram: Maraga, CJ & President; Mwilu,DCJ &

VP; Wanjala; Njoki; & Lenaola, SCJJ)

CIVIL APPLICATION NO. 16 OF 2016

GLENCORE ENERGY (UK) LTD........................APPLICANT

VERSUS

KENYA PIPELINE COMPANY LTD...............RESPONDENT

 (Being an application for review of the decision of the Court of Appeal (Githinji, Azangalala &

Mohamed, JJA) given at Nairobi on 17^th June, 2016 dismissing the applicant’s

application for certification that the matter herein is one of general

public importance warranting a further appeal to

the Supreme Court).

R U L I N G

[1] In its ruling delivered at Nyeri on 17^th June 2016, the Court of Appeal (Githinji, Azangalala & Mohamed, JJA) declined to grant the applicant certification to appeal to this Court against its decision delivered on 17^th June 2016. On 1^st July 2016, the applicant filed this application under Article 163(4)(b) and (5) of the Constitution and Rule 31 of the Supreme Court Rules, 2012 seeking a review of the Appellate Court’s said decision declining to grant certification.

[2] The application is premised on the grounds that the Appellate Court failed to appreciate that the matters in respect of which the applicant seeks a decision of this Court are substantial points of law which are of general public importance and transcend the circumstances of this particular case.

[3]As this Court stated in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR, a decision it had also made in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo & 5 Others [2012] eKLR (Supreme Court Petition No. 2 of 2012) and reiterated in many other subsequent decisions, an applicant seeking certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case….” If the applicant’s appeal is based on a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”

[5] Upon consideration of the facts in this matter alongside the said principles governing the grant of certification to appeal to this Court, we agree with the written submissions by counsel for the respondent and find that the decisions of the two courts below were based on each of those court’s interpretation of the provisions of the private Transportation and Storage Agreement between Triton Petroleum Company Limited (Triton) and the Respondent and the Collateral Financing Agreement between  Triton and the applicant. These are not issues of general public importance which transcends the circumstances of this particular case. They do not therefore meet the criteria set out in the above cases.

[5] The determinations by the two courts below of the legal issues of whether there was bailment by attornment; whether incorporation by reference is part of the law of Kenya; and the alleged unconstitutional deprivation of property as framed by the applicant were based upon the peculiar facts of the case and each of the two courts’ said interpretation of the two private agreements. They are therefore not substantial points of law the determination of which will have a bearing on public interest. In the circumstances, we find no merit in this application and we accordingly dismiss it with costs to the respondent.

DATED and DELIVERED at NAIROBI this 18^th day of July, 2018

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D.K. MARAGA                                                   P.M. MWILU

CHIEF JUSTICE & PRESIDENT                   DEPUTY CHIEF JUSTICE & VICE

OF THE SUPREME COURT                           PRESIDENT OF THE SUPREME COURT

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S. C. WANJALA                                                   N.S. NDUNG’U

JUSTICE OF THE SUPREME COURT           JUSTICE OF THE SUPREME COURT

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I. LENAOLA

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

SUPREME COURT OF KENYA