1.Upon reading the originating motion taken out by the applicant dated July 21, 2023 and filed on August 4, 2023 pursuant to articles 10, 20(3), 25(c), 40, 48, 50, 60(1)(b) and (d), 159(2)(a) and (d), 163(4)(b) and 259(1) of the Constitution, sections 15, 15B(1)(b) and (2) of the Supreme Court Act, 2011 and rules 13, 33 and 36 of the Supreme Court Rules 2020 for orders that;i.This court be pleased to extend the time and grant the applicant leave to file a notice of appeal against the judgment of the Court of Appeal at Nairobi (Warsame, Mwilu (as she then was) & Sichale JJA) in Civil Appeal No 172 of 2010 delivered on July 29, 2016.ii.This court be pleased to review the refusal to grant certification, by the Court of Appeal at Nairobi (Okwengu, Achode & Mativo, JJA) in Civil Appeal (Application) No 172 of 2010 delivered on July 7, 2023.iii.This court be pleased to certify the intended appeal to the Supreme Court against the judgment of the Court of Appeal at Nairobi (Warsame, Mwilu (as she then was) & Sichale JJA) in Civil Appeal No 172 of 2010 delivered on July 29, 2016 as a matter of general public importance.iv.This court be pleased to grant the applicant leave to appeal against the judgment of the Court of Appeal at Nairobi (Warsame, Mwilu (as she then was) & Sichale JJA) in Civil Appeal No 172 of 2010 delivered on July 29, 2016.v.The costs of this application be in the intended appeal; and
2.Upon perusing the grounds on the face of the application, the supporting affidavit of Patrick Karanja Ngugi, the applicant’s director, and the submissions filed on its behalf on August 4, 2023, in which the following five issues are considered to involve matters of general public importance:a.Whether the grant of Land Control Board (LCB) consent to transfer property validates the transfer of a property to innocent third parties from the premise historically reinforced by the court that the lack of LCB’s consent invalidates any transfer of title to property, where such consent is a legal requirement for the transfer.b.Whether section 46 of the Advocates Act is an absolute bar to transactions between advocates and their clients which overrides freedom of contract, privity of contract vis a vis other formalities laid down by the Law of Contract Act and the constitutional right to acquire or hold property under article 40 in light of the principles of land policy under article 60(1)(b) and (d).c.Whether a party having conscientiously entered a contract may rely on courts of law to defeat the obligations undertaken under such contract and the import of the principle of freedom to treat under the Law of Contract Act in land sale transactions.d.Whether the rights of a bona fide purchaser for value may be defeated by prior transactions in the subject property in the absence of fraud or misrepresentation on the part of the bona fide purchaser.e.Whether an interested party joined in the proceedings in the Court of Appeal, without being a party in the original cause and after judgment in the High Court and Court of Appeal, can apply for certification in the Supreme Court in light of rule 33(5)(a) of the Supreme Court Rules 2020; and
3.Bearing in mind the following facts which precipitated this dispute in which the primary parties were the 1st to 4th respondents on one hand and the 5th and 6th respondents on the other hand. The 5th respondent, Geoffrey Chege Kirundi is an advocate of many years standing and the 6th respondent, Lucy Wamaitha is his wife. The 5th respondent represented Walter Karanja Muigai in HCCC No 3398 of 1988 in which Mr and Mrs Mugo Kirika had sued the former for breach of a sale agreement over LR No 10090/23, the suit property, situated in Juja within Thika Municipality comprising approximately 47 acres which is also at the heart of this dispute.
4.Further, we note that the agreed purchase price was Kshs 35,000 per acre of all the 47 acres comprised in the suit property. Walter Karanja Muigai, the vendor who subsequently passed away and is represented in these proceedings by his legal representatives, the 1st to 4th respondents, received part payment, but the Kirikas failed to pay the balance even after the completion period was extended, prompting the deceased to rescind the sale. The Kirikas instituted HCCC No 3398 of 1988 against the deceased who was represented by the 5th respondent. The action was determined in favour of the deceased on October 28, 1993, with an order directing him to refund the sum of Kshs 405,000 being part payment received. The Kirikas’ appeal to the Court of Appeal, was on January 21, 2000 dismissed, bringing to an end the legal tussle between the deceased and the Kirikas. A few years after the determination of the dispute between the Kirikas and the deceased, the deceased died.
5.Recalling that a fresh dispute erupted between the estate of the deceased and the 5th and 6th respondents, in which the latter alleged that on October 26, 1990, the deceased executed a sale agreement in their favour for the sale of the suit property for a consideration of Kshs 2,500,000, payable in three installments; that the sale agreement was executed in the presence of the deceased and 10 members of his family who consented to it; and that the sale and transfer to the 5th and 6th respondents was intended to bail out the deceased after the Kirikas defaulted to complete the sale transaction exposing the deceased to imminent foreclosure by Kenya Commercial Bank, which he owed money.
6.Upon the death of the deceased the 1st to 4th respondents filed HC Succession Cause No 3608 of 2002 for appointment as the legal representatives of the deceased. They annexed to the petition for letters of administration an affidavit in support to the effect that the deceased had no liabilities. This prompted the 5th and 6th respondents, as creditors of the deceased, to lodge a claim over LR No 10090/23; and
7.Bearing in mind that even after the petition for letters of administration was subsequently amended to include the suit property as one of the deceased’s assets, the 5th and 6th respondents once again protested, insisting that the suit property ought to have been included, not as part of the deceased’s assets but as part of his liability; and
8.Upon considering that, the 5th and 6th respondents then moved the High Court in HC Misc Cause 1277 of 2004 (OS) seeking inter alia orders that the period for the Land Control Board consent issued on December 16, 1993 in respect of the suit property be extended and validated. In addition, they filed HC Misc Case No 1401 of 2004 (OS) against the 1st to 4th respondents, as the administrators, for orders directing them to include the suit property as part of the deceased’s liabilities and accordingly to execute a fresh transfer of the suit property to them and in default thereof, the Deputy Registrar to execute the transfer documents in their favour. All three applications, HC Succession Cause No 3608 of 2002, HC Misc Appl No 1277 of 2004 and HC Misc Case No 1401 of 2004 were consolidated and heard together; and
9.Upon evaluating the consolidated applications, the High Court (Rawal, J as she then was), found that the 5th and 6th respondents had legally acquired title to the suit property; the 1st to 4th respondents were directed to execute fresh transfer documents in favour of the 5th and 6th respondents and in default the Deputy Registrar of the court do so in their place; that the 5th and 6th respondents were to pay the balance of the purchase price found to be due; and that the 1st to 4th respondents were directed to remove the suit property from the list of assets of the estate of the deceased; and
10.Dissatisfied with this outcome the 1st to 4th respondents challenged it and the appellate court (Warsame, Mwilu (as she then was) & Sichale JJA), in allowing the appeal, revoked the transfer of the suit property to the 5th and 6th respondents and ordered the ownership to revert to the estate of the deceased, for the following three main reasons; one, that 5th respondent, an advocate having represented the deceased in an action brought by the Kirikas over the suit property, it was contrary to section 46 of the Advocates Act for the former to purport to purchase it from the deceased; two, the agreement between the deceased and the 5th and 6th respondents having been entered into during the subsistence of HCCC No 3398 of 1998, the transaction offended section 52 of the Transfer of Property Act which forbids any dealing on immovable property during the pendency of a suit touching on the property, unless with the consent of the court, the doctrine of lis pendens; and three, the suit property being agricultural land, no valid consent of the Land Control Board was obtained; and
11.Upon noting that the court, in passing, rejected the 5th and 6th respondents’ contention that the suit property had since changed hands, as this statement was merely made from the bar, the question not having been canvassed before the High Court or even before it. The court also wondered how the transfer was possible when the dispute in respect of the very property was pending in court. With that, the appeal was allowed with costs to the 1st to 4th respondents; and
12.Acknowledging that the applicant was not a party to the proceedings before the two superior courts below and especially in the Court of Appeal in which the above adverse order was made affecting its title to the suit property; that because of those orders, the applicant filed an omnibus application in the Court of Appeal after judgment seeking four reliefs: to be joined in the proceedings as an interested party; an order reviewing the aforesaid judgment; or in the alternative, that it be granted leave to appeal to the Supreme Court; and that an order be issued to stay the execution of the impugned judgment.
13.Noting from the record that the prayer to join the applicant as an interested party was allowed in a separate ruling by the Court of Appeal (MK Koome (as she then was), Asike- Makhandia & J Mohammed, JJA) in which the court appreciated that the application was made post- judgment but justified the course taken of joining the applicant after the judgment on the ground that it was necessary to enable the applicant to apply for the review of the judgment and in the alternative to seek certification to appeal to the Supreme Court; and
14.Upon perusing the second ruling of July 7, 2023 (Okwengu, Achode & Mativo, JJA) which has given rise to this application, we note that in answering the three remaining issues raised in the omnibus application, the court concluded, in respect of the prayer for stay of execution, that there is no procedure in that court for it to stay its own judgment. Regarding the prayer for review, the court noted that the primary parties before the High Court and Court of Appeal were the 1st to 4th respondents on the one hand and the 5th to 6th respondents on the other hand, with the issues being whether the 5th and 6th respondents legally acquired the suit property. To the court’s mind, the applicant was so intrinsically connected to the 5th respondent, that it could only be a decoy; and that the application does not fall within the exceptional circumstances, for that court to invoke its residual jurisdiction to review its judgment.
15.Furthermore, regarding certification to the Supreme Court under article 163(4)(b) of the Constitution, the court found that the questions sought to be answered in the intended appeal are not novel; that the constitutionality of section 6 of the Land Control Act, (on consent of that Board); section 46 of the Advocate’s Act vis-à-vis articles 40 and 60 of the Constitution; and the doctrine of lis pendens are well settled in law, and therefore do not meet the threshold in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone,  eKLR; and
16.Upon reading the applicant’s submissions and its explanation for delay for which it seeks extension of time to file a Notice of Appeal: that the impugned judgment against which it intends to appeal was delivered in its absence as it was not a party to the proceedings; that consequently, its application was partially allowed and it was joined to the proceedings as an interested party; that it had to wait for the second ruling which was finally delivered on July 7, 2023 dismissing the prayers for review and certification; and that the instant application has been made promptly, in good faith and that the explanation for the delay is plausible in terms of the principles laid down in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others  eKLR; and
17.Further considering the applicant’s arguments that the issues arising from the questions proposed for the intended appeal which we have set out in paragraph 2 above transcend the circumstances of this matter and have a significant bearing on the public interest regarding the applicability of the land control board consent, section 46 of the Advocates Act, the rights to property of a bona fide purchaser and the right to a fair hearing of a party who did not participate in the original proceedings. Specifically, the applicant submits that the question of the said Board’s consent is unsettled and requires this court’s input. It cites the case of Aliaza v Saul, Civil Appeal No 134 of 2017;  KECA 583 (KLR) where it was held that failure to obtain the necessary consent from the Board within the required period of 6 months did not render the transaction void. In addition, the applicant contends that other critical points of law will also be raised, such as the doctrine of lis pendens, freedom to contract, privity of contract and indefeasibility of title which if determined, the result shall have a significant bearing on public interest; and that all the aforementioned questions meet the test of general public importance as set out in Hermanus (supra); and
18.Upon considering the replying affidavits of Geoffrey Chege Kirundi and Lucy Wamaitha Chege, the 5th and 6th respondents and the submissions filed on their behalf in support of the application, to the effect that; the matter involves a myriad of issues of general public importance which call for a consideration of the interpretation of statutes and general principles in relation to transactions in land, including section 6 of the Land Control Act, the doctrine of lis pendens and section 46 of the Advocates Act; that the case presents an opportunity for a modern and progressive way to define and grow jurisprudence on women’s constitutional proprietary rights in terms of joint ownership or tenancy in common and whether those proprietary rights are protected under the Constitution; that these are questions of general public importance affecting all women particularly those joined in matrimonial union as it affects their ownership and ability to assert and enforce their rights under contract or property ownership; and that these highlighted issues arise from the pleadings all the way from the High Court to the Court of Appeal and were the subject of the decisions in the two courts; and
19.Bearing in mind the contents of the 1st to 4th respondents’ replying affidavit sworn on their behalf by William Muigai Karanja, the 4th respondent as one of the administrators of the estate of the deceased, and their submissions dated August 24, 2023 wherein the 1st to 4th respondents oppose the application for reasons that; the application is fatally defective ab initio as it offends rule 33(5) of the Supreme Court Rules 2020 since the applicant was not a party to the suit in the High Court and in the appeal before the Court of Appeal; that the Court of Appeal answered the main question before it by declaring that the 5th and 6th respondents did not legally acquire the suit property and therefore by necessary implication could not transfer a good title to the applicant or any third party; that the court also found that there was demonstrable evidence that the applicant, and the 5th and 6th respondents engaged in corruption, fraud and deceit to subvert the course of justice; that contrary to rule 33(2), the instant application was filed 8 days after the lapse of the requisite 14 days; that in any event, the 5 issues the applicant claims as being of general public importance do not demonstrate how the general public or any other person is impacted by those issues; the application does not raise any novel issues or the existence of conflicting decisions arising from similar situations which would require to be addressed by the Supreme Court; and that the issues raised were not canvassed before both superior courts below; and
20.In view of the applicant’s averments in response to the foregoing that it has the locus standi to file the instant application by virtue of having been joined in the proceedings before the Court of Appeal despite not being an original party to the cause; and considering its invitation of the court to determine the constitutionality of rule 33(5)(a) for the reason that it limits access to the court under article 163(4)(b) of the Constitution only to original parties; andHaving considered the application, affidavits, and rival arguments by both parties, we now opine as follows:
21.Cognizant of the fact that, although the applicant was not a party to the suit before both the High Court and the appeal in the Court of Appeal, it was joined as an interested party post-judgment stage. The main question that follows is whether the applicant is competent to approach this court in the manner that it has done. Or framed differently, whether the court has jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal.
22.Acknowledging that jurisdiction is everything and that without it, a court has no power to take one more step; and that a court’s jurisdiction flows from either the Constitution or legislation or both. See Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others, SC Application No 2 of 2011:  eKLR. It follows that we must, in limine, be satisfied that the applicant has properly invoked the jurisdiction of this court. In respect of this application, the court is guided by article 163(5) of the Constitution, section 15B of the Supreme Court Act, rule 33 of the Supreme Court Rules, 2020 and past decisions of the court on the subject. Specifically, where the Court of Appeal certifies or declines to certify a matter as one of general public importance, rule 33 aforesaid grants an aggrieved party the right to apply to this court for review. Such application must be made within fourteen days.
25.Strictly speaking, though joined, the applicant was not a party to “the proceedings” in the Court of Appeal having been joined post-judgment, yet a joinder contemplates a situation where proceedings are still pending before the court and in terms of rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) which is in pari materia with order 1 rule 10(2) of the Civil Procedure Rules, a party will only be added to on-going proceedings in order to enable the court adjudicate fully upon and settle all the questions involved in the particular proceedings before it.
26.Noting that the original dispute between the 1st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered on July 29, 2016, there were no proceedings to which the applicant could properly join four years later on June 5, 2020, when the ruling by the first bench of the Court of Appeal was rendered. This question has been settled in a long thread of past decisions. For example, in JMK v MWM & another  eKLR, the court stressed that;See also the Court of Appeal judgment in Kenya Airport Authority v Mitu- Bell Welfare Society & 2 others  eKLR on the finality of a judgment as a decision of a court resolving all the contested issues and settling the rights and liabilities of the parties before it and our decision in University of Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020;  eKLR emphasizing the finality of the litigation process. Similarly, this Court haspronounced itself in the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others,  eKLR, relying on Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others  eKLR on the place of an interested party in any proceedings.
27.Convinced that the issues the applicant wishes to raise before the Supreme Court were not those determined by the courts below, where the sole issue was always whether the 5th and 6th respondents legally acquired title to the suit property. Whether or not the applicant was an innocent purchaser for value, was never pleaded, canvassed or determined. Indeed, from the record, the issue was raised, according to the Court of Appeal, from the bar, without any evidence in support. At that point, the court had no opportunity or material from which to determine the question. Issues like the proprietary rights of women were never the subject of determination before both superior courts below.
28.We restate, on the authority of Hermanus Phillips Steyn v Giovanni Gnecchi-Ruscone (supra) that the applicant has not satisfied the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case and has a significant bearing on the public interest. All we see, like the appellate court did see, is a spirited attempt by the 5th and 6th respondents through the applicant to have a second bite at the cherry. The grounds listed for consideration in the intended appeal, are those that would have only aggrieved the parties before the Court of Appeal. We also reiterate as we did in University of Eldoret & another v Hosea Sitienei & 3 others (supra) that a party must only elect one avenue; either to seek a review or lodge an appeal, they cannot seek both as this defeats the essence of the finality of litigation.
29.Consequently, and for the reasons given, we find that the applicant lacks the locus standi and is not competent to seek certification before this court. As a corollary, this court lacks the jurisdiction to determine this application for certification.
30.Accordingly, we make the following orders:i.The originating motion dated July 21, 2023 and filed on August 4, 2023 is hereby dismissed.ii.The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to this court is hereby affirmed.iii.The costs of this application shall be borne by the applicant.It is so ordered.