George Chege Kamau v Esther Wanjira Kamau [2014] KECA 340 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KIHARA KARIUKI, (PCA), NAMBUYE & G. B. M. KARIUKI, JJ.A.)

CIVIL APPLICATION NO. SUP 16 OF 2013

BETWEEN

GEORGE CHEGE KAMAU ……......................……..…….........APPLICANT

AND

ESTHER WANJIRA KAMAU….…………………...…………… RESPONDENT

(Anapplicationfor leave to appeal to the Supreme Court of Kenya from the Judgment of the Court of Appeal at Nakuru, (Karanja, Mwilu & Musinga, JJ.A) dated 25thJuly,2013

in

Civil Appeal No. 274 of 2006 (NAK34/2006)}

************************

RULING OF P.KIHARA KARIUKI, JA

(1)    The notice of motion before us is dated the 14th August, 2013, and is taken out under Article 163(4) (b)of the Constitution of Kenya,sections 15and 16of the Supreme Court Act and Rule 1 (2)of the Rules of this Court.  In the application, the applicant, George Chege Kamau,  seeks certification that his intended  appeal  to the Supreme  Court from the judgment of this  Court dated the  25th    July,   2013 in  Civil   Appeal No.  274  of  2006 (NAK

34/2006) involves a matter of general public importance within the meaning of Article 163 (4) (b)of the Constitution of Kenya.The central dispute in the intended appeal is the respective shares of the appellant and the respondent,

Esther Wanjira Kamau,    in   the   property  known  as    Plot     Title     No. Ndundori/Mirireni/Block 2/56 (Ndimu), (hereafter referred  to as  “the suit property”),  measuring approximately  ten acres. For purposes of certification under Article  163 (4)of the Constitution,  the applicant  contends that the intended  appeal  raises  substantial  and important issues  of general  public importance  pertaining to the right to a fair hearing  by an independent  and impartial court and the right to access justice.

(2)     The factual background of the application is not seriously contested.  Between 1975 and 1978 the applicant and the respondent  cohabited  as husband and wife,  during which time  they jointly  acquired  the suit  property.     Upon termination of the cohabitation, the respondent filed Nakuru HCCC No. 389 of 1978 seeking an order for division of the suit property in accordance with the contribution of each party.

(3)    The court file  for Nakuru HCCC No. 389 of 1978 disappeared  from the registry and for an incredible period of almost 20 years, no progress was made towards resolving  the dispute  regarding  the suit  property.  In 1998, the applicant  got himself  registered  as the proprietor  of the suit property.  In response, the respondent filed another suit, Nakuru HCCC No. 415 of 1998, seeking  a declaration that she was the lawful owner of the suit property; that the registration of the applicant as proprietor was fraudulent; and an order for

cancellation of the registration of the applicant and, in lieu thereof, registration of the suit property in her name.

(4)     The applicant resisted  the new suit  on the basis  that the respondent’s contribution towards the acquisition of the suit property was meager and that in any event, she had sufficiently repaid herself from proceeds generated from the suit property.   In addition, the applicant  averred that the first  suit, Nakuru HCCC No. 389 of 1978, was still pending and ought to be determined before the second suit.

(5)    On the 14th April, 1999 the advocates for both the parties appeared before Rimita,  J. and, by consent, stayed the hearing  of all pending interlocutory applications and agreed on a hearing date for the suit in HCCC No. 415 of 1998. On the date scheduled for the hearing of the suit, the applicant, who in the meantime had elected to act in person, insisted on arguing an interlocutory application. In view of the earlier consent order, he was overruled  and the suit was heard on merit.

(6)    In a  judgment dated the 28th  June,  1999 which has  drawn considerable attention in  this  Court, the learned  judge ordered the suit  property to be divided into two equal portions and directed the applicant to transfer to the respondent the portion with the houses occupied  by her sons.  In default, the Executive Officer of the Court was directed to execute all the forms necessary to implement and comply with the judgment.

(7)     Aggrieved by the judgment of the trial judge, the applicant filed in this Court Civil Appeal No. 274 of 2006 (NAK 34/2006) contending that the learned judge had erred by declining to entertain interlocutory applications; by hearing HCCC No. 415 of 1998 while the earlier suit, HCCC No. 389 of 1978 was still pending; by compelling the applicant to proceed with the hearing of the suit on a date when the same was not set down for hearing and when the applicant was not represented by counsel; by holding that the respondent was entitled to a half share in the suit property; and by violating the rules of natural justice and denying the applicant a fair hearing.

(8)     The appeal was heard by this Court (Karanja, Mwilu& Musinga, JJ. A)who, in a judgment dated the 25th July, 2013, faulted the judgment of the trial judge, but nevertheless,  after re-evaluation  and reconsideration  of the evidence, upheld the order that the suit  property be shared  equally between  the applicant and the respondent.  It is against that judgment that the applicant now seeks certification to enable him lodge a further appeal before the Supreme Court.

(9)     Before us, Mr. A. B. Shah,learned counsel for the applicant submitted that this was a suitable  case for certification that a matter of general public importance

was involved. From the judgment of the High Court, counsel submitted, bias against the appellant was glaringly obvious, amounting to contravention of the national values and principles of governance  set out in Article 10 (2) (a)and (b)of the Constitution, and a violation of the applicant’s right to human dignity and equality and the right to a fair hearing under Article 50of the Constitution. Counsel further submitted that by condemning the applicant as corrupt  without any evidence, the trial judge lacked  neutrality,  resulting  in a miscarriage  of justice.

(10)   Mr. Shah next invoked Articles 73and 232of the Constitution and submitted that a judge is a state officer who is obliged by the Constitution to show respect for the people and to uphold the highest standards of professional ethics.  It was Mr. Shah’s submission that this Court, having expressed displeasure at the trial judge’s  intemperate  language,  erred  by declining to order a  re-trial, which is what ought to have happened in view of the contraventions of the Constitution enumerated above.

(11)    The  judgment  of  the  Supreme  Court  in  Hermanus Phillipus Steyn vGiovanni Gnecchi-Ruscone [2013]  eKLR (ApplicationNo. 4 of 2012)was cited to illustrate  what constitutes  a matter  of general public importance. Counsel contended that the intended appeal touched on land rights that may affect a large number of people and involved questions bearing on the proper conduct of the administration of justice.

(12)  Learned  counsel  concluded  by identifying the following seven  issues  of general  public importance  that the applicant wished  to place  before  the Supreme Court for determination:

“1. Cana judge with an open bias towards one of the litigants come up with a judgment which can stand the principle  of neutrality of a judicial officer?

2. Can a judge allow  a second  suit  to proceed  to hearing when the first  one is still  pending and the pleadings in both are the same?

3. Cana judge without any evidence presume a party to be a corruptor?

4. Can a judge without the issues having been formed (sic)

proceed with thetrial?

5. Can this Court, having found that “we can openly state that the same (judgment)  does not comply with the above quoted-provision of the law” (that is to say the then order

21 rule  4 of  the  Civil Procedure  Rules)  in its  equity conscience dismiss the appeal?

6. Can this  Court   conclude  that  the  previous  suit  was abandoned by the plaintiff?

7. Wasthis Court obliged to ordera retrial in view (of) the open and obvious bias of Rimita, J. as he then was?”

(13) Ms.   Njeri Njagua, learned counsel for   the  respondent,      opposed the

application,  contending that the intended appeal did not meet the threshold of a matter of general public importance.  In counsel’s view, the intended appeal raised issues of concern only to the applicant and the respondent and did not implicate  the general public. As  regards the issues  of law raised  such  as whether or not a latter suit can be heard in lieu of an earlier pending suit between the same parties on the same subject matter and whether or not a suit can be heard while there is a pending application, counsel submitted that there was no weighty legal issue raised and that in any event, the trial court had resolved those matters with the consent of the parties prior to the hearing of the suit.

(14)    The respondent relied on the rulings of this Court in Telkom Kenya Limited vJohn O. Ochanda(Suingon His  Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] eKLR (Civil Application No. Sup 24 of 2013)and Charles Nderitu  Gitoi (Suing On His  Behalf  and  As LegalRepresentativeof   Charity   Nyaguthii   Gitoi   (Deceased)  v  ChristopherMuchomba Warui& 2 others [2014] eKLR(Civil ApplicationNo. Sup 9 of2013)and submitted that the application before  us    did   not raise  any issue of great jurisprudential moment to warrant further input by the Supreme Court and that the jurisdiction of the Supreme Court cannot be invoked merely for the purpose of rectifying errors with regard to settled matters of law.

(15)   Counsel concluded  by submitting  that although this Court had decried  the manner in which the judgment of the High Court was couched, after due re- evaluation and analysis of the evidence, this Court found that on merit, the final decree of the High Court was correct.

(16)   It    should    by  now  be  pretty  obvious that  by  deliberate   design,   the Constitution of Kenya, 2010 intended the Supreme Court to concern itself only with    important legal issues that have a clear bearing on the public interest. The apex court was not intended to serve as an extra tier of an appeal court, where all disputes would end up. Effective filter mechanisms were designed to ensure that only appeals that implicate the public interest over and above the narrow or direct interest of particular litigants, find their way to the final court.

(17)   The principles against which to evaluate an application, in which it is alleged that a matter of general public importance is involved, so as to justify an appeal to the Supreme Court are now well crystallized.   These principles may be restated as summarized hereunder.

(18)   This Court will not certify a matter to be one of general public importance and deserving of the attention of the Supreme Court as a matter  of course.   The applicant  has first  to satisfy  the Court that the intended  appeal involves a matter of general public importance within the meaning of Article 163 (4) (b)of the Constitution - (Daniel  Kimani  Njihia  v  Francis  Mwangi  Kimani  &Another 2014] eKLR, Civil Application No. Sup 10 of 2013).    To justify certification, the intended appeal must involve cardinal issues of law or issues of great jurisprudential moment – (Peter Oduor Ngoge v Francis Ole Kaparo& 5 Others [2012] eKLR, Supreme Court PetitionNo. 2 of 2012). For an intended appeal to qualify as a matter  of general public importance, it must be one, the determination  of  which  transcends   the circumstances  of  theparticular case and has a significant bearing on the public interest - (Styen vsGnecci-Ruscone)  (supra).

Where the issue of general public importance is alleged to involve a point of law, the point of law must be a substantial one, the determination of which will have a significant bearing on the public interest.  In addition, that the question of law must have arisen before this Court and it must have been the subject of judicial determination  - (Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone) (supra).

(19)   The jurisdiction of the Supreme Court under Article 163(4) (b)is not to be invoked merely for the determination of contested facts between the parties. Nor is it to be invoked merely for the purpose of rectifying errors with regard to matters of settled law – see (Malcolm Bell v Daniel Toroitich Arap Moi &Another  [2013] eKLR, (Supreme  Court  Application  No. 1 of 2013). Consequently, mere apprehension of a miscarriage of justice without satisfying the requirements of Article 163 (4) (b)of the Constitution will not suffice to justify certification.

(20)  These  principles, particularly the latter ones,  are  underpinned   by the consideration,  succinctly  articulated  by the Supreme  Court as  follows  in Peter Odour  Ngoge vs Hon Francis Ole Kaparo & 5 Others (supra):

“In  the  interpretation  of  any law touching  on the  Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of courts in the constitutional  set-up, running up to the  Court  of  Appeal  have the  professional  competence  and proper  safety design,  to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further  input of the Supreme Court.”

(21)   I have carefully considered the issues raised by the applicant. I would find no difficulty in holding that most of the issues intended to be canvassed by the applicant before the Supreme Court do not constitute matters of general public importance within the meaning of Article 163 (4) (b)of the Constitution and as further expounded by the Supreme Court and this Court. That the dispute involves land does not of itself make the matter one of general public interest. In addition, I cannot see any issue for reference to the Supreme Court arising from the fact that the learned trial judge declined to entertain interlocutory applications on the date scheduled for the hearing of the suit or, indeed, for proceeding with HCCC No. 415 of 1998, in lieu of HCCC No. 389 of 1978, whose file had been missing for almost 20 years.

(22)   This is because the parties had, by consent, agreed that on the appointed day, HCCC No. 415 of 1998 would be heard and that all interlocutory applications would be abandoned.  The applicant too, having in the intervening period, dispensed with the services of his advocate and having opted to act in person, cannot resile and allege that he was denied an opportunity  to be represented  by an advocate and that there is a matter of general public importance involved in that respect.

(23)   In my view as this application has not attained the threshold set by Article 163 (4)of the Constitution, there is no other ground to justify a certification by this Court that there is a matter of general public importance involved in the case. I agree  with the submission  of Ms.  Njeri Njagua, learned  counsel  for the respondent,  that the intended  appeal  raised  issues  of concern  only to the applicant  and the respondent, and did not implicate  the general public. A bench of this Court differently constituted, dealt with all the complaints raised by the applicant, and which he now wants to be ventilated before the Supreme Court yet again, and censored the trial Judge appropriately.  I would decline to issue a certificate under Article163 (4)of the Constitution and dismiss the application with costs to the respondent.

(24)   As my sister, Nambuye, JA and brother, G. B. M. Kariuki, JA also agree, this application fails and is dismissed with costs to the respondent.

Dated anddelivered at Nairobi this 10thday ofOctober, 2014.

P.KIHARA KARIUKI, PCA

………….……………..

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR

RULING OF NAMBUYE,JA

1.  Before us is a notice of motion dated the 14th   day of August, 2013. It is premised on Article 163(4) (b) of the Constitution of Kenya, 2010, Section 15 and 16 of the Supreme Court Act and Rule 1(2) of the Court of Appeal Rules. A total of five(5) reliefs are sought. In a summary, the applicant seeks leave of this Court to appeal to the Supreme Court against the decision of this Honorable Court delivered on the 25th  day of July, 2013 by Karanja, Mwilu and Musinga JJA. Alternatively, this Honourable Court to certify that the matter in issue as concerning land occupied by the applicant is of general public importance and/or that a substantial miscarriage of justice may have occurred (based on the ratio decidendi of the case of Erin Ford Properties

Limited versus Chesire Country Council [1974] 1ALLER 448)and/or that the law relating to joint possession needs to be considered by the Supreme Court.

2.  The motion is anchored on the grounds in the body of the application and the content of a supporting affidavit of George Chege Kamau,deponed on the same date of the 14th day of August, 2013 and oral submissions in Court. The application is opposed by a replying affidavit of Esther Wanjira,the respondent.

3. The brief background information to this application as gleaned from the judgment of Rimita J,(as he then was) and the content of the grounds in the body of the application, supporting affidavit and oral submissions to Court is that, the applicant and the respondent at one time cohabited as man and wife, in the course of which they acquired Land Parcel Number L.R. 9514/1 now known as LR. No.Dondori/Mirorani Block2/56 (Ndimu) measuring ten (10) acres, at a purchase price of Kshs. 85,000. 00. A dispute arose over the ownership of the subject property after the applicant obtained title in his name only and forcefully evicted the respondent from the land, culminating in the respondent filing Nakuru HCC. No. 389 of 1978 claiming dissolution of the partnership between them and subdivision of the subject property. Nakuru HCCC No. 389 of 1978 was however never heard and finalized. It allegedly disappeared from the Court Registry with no trace. Consequent to its disappearance, a skeleton file was opened, but it is not clear what subsequently became of this skeleton file or as to why no further proceedings were continued in the said skeleton file.

4.  Meanwhile, the respondent filed Nakuru HCCC No. 415of 1998 seeking the same reliefs as those previously sought in 369 of 1978. The parties with the participation  of  their  advocates  agreed  to  dispense  with  summons  for directions  in  the latter suit  and  fixed  the matter for merit  hearing  before Rimita, J.On the hearing date, the trial Judge discovered that the applicant had slotted in an application raising objection to the hearing of the latter suit (HCCC No. 415 of 1998) during the pendence of an earlier suit (369  of 1978) over the same subject matter. The Registry gave the hearing date of the application to coincide with the date earlier fixed by the learned Judge for the main  hearing.  The  learned  Judge  declined  to  hear  that  application,  and instead proceeded with the hearing of the main suit as previously fixed, culminating in a judgment of the learned Judge of 28th day of June, 1999 sharing out the subject property equally between the applicant and the respondent.

5.  The applicant was aggrieved by that judgment and he appealed to this Court vide appeal number 274 of 2006 (Nak 34/2006) seeking either an order for a retrial or a reversal of the learned Judge’s findings. In a judgment dated the 25th day of July, 2013 W. Karanja, P.M. Mwilu and D.K. Musinga JJA.re-evaluated, re-assessed and re-appraised the above evidence, made observations on the judgment, took note of their powers under rule 31 of this Courts Rules, and then arrived at their own conclusion on the matter thus:

“In conclusion, we must state that, the learned Judge erred in law in making such interpreter remarks against the appellant as earlier pointed out. Such attacks on a partys”. Characters have no place in a judgment unless they can be justified on the evidence on the record. But having said that we think the appellants conduct on the hearing day in trying to frustrate the hearing of the suit by attempting to side step the consent that had been recorded by counsel must have infuriated the trial Judge. That notwithstanding, the learned Judge took his anger a little bit too far, judging by the kind of remarks he made regarding the appellant.”

6.      It is against the above background that the applicant seeks leave of this Court to have his grievances interrogated by the Supreme Court. A.B. Shahholding brief for Kaguciafor the applicant urged us to allow the application arguing that the applicant’s application meets the threshold for a reference to the Supreme Court. Reliance was placed on Article 10(2) (a) (b) for the proposition that the learned trial Judges judgment offends principles of adherence to the rule of law and principles of Equity and Equality in the assessment of evidence adduced by the parties in that the learned Judge tended to favour the respondent in the assessment of the said evdience; Article 50(1) for the proposition that, by reason of the apparent biased mind of the learned trial Judge, the applicant did not receive a fair hearing; Article 73(1) (v) for the proposition that the learned trial Judge’s judgment failed to promote public confidence in the integrity of the office of a judge; Article 73(2) (b) for the proposition that the learned trial Judge lacked objectivity and impartiality by failing to ensure that his judgment was not influenced by favouritism and other improper motive such as bias as against the applicant; Article 73(2) (c ) for the proposition that the learned trial Judge’s judgment lacked  objectivity in the protection  of public interest that requires objectivity in the administration of justice; Article 73 (2) (d) for the proposition that the learned trial Judge failed in his duty of being accountable to the public in his judgment writing considering that a judgment is not only meant to serve the particular litigants who are party to the litigation giving rise to it only but the entire public, Article 20(4) for the proposition that in the discharge of his duty of administration of justice, the learned Judge failed to apply principles of equity  and  equality  in  the  administration  of  justice;  Article  23  for  the proposition that the standard of administration of justice was not met, in the learned Judges judgment Article 25(c) for the proposition that the applicant did not receive a fair trial.

7.  On case law, reliance was placed on the Supreme Court decision in the caseof Steyn versus Gnecci- Ruscone SP application NO. 40 of 2012 (S.C.K.)for the propositions that: (i) Allowing the applicant to proceed on to the Supreme Court will advance the  principles of the rule of law and permit the development of the law by enabling the Supreme Court to redefine new standards for the administration of justice in line with the current demands on the administration of justice set by the prescriptions in the current Constitution (paragraph 12); (ii) they are not only properly before the seat of justice but have also cited the correct provisions of law for access to the seat of justice in the Supreme Court (paragraph 23); (iii) a denial of leave to the applicants to proceed  to  the  Supreme  Court  as  requested  will  be  an  affront  to  the applicants right to access to justice (paragraph 33); (iv) the applicant received a raw deal from both the High Court and this Court in his guest for justice  for which he seeks not only a remedy but an effective remedy, that is, access to the seat of justice in the Supreme Court to indicate his grievances.

8.  In opposition Njeri Njagualearned counsel for the respondent, reiterated  the content of the replying affidavit of Wanjiru Kamauthe respondent and urged us to dismiss the applicants’ application on the grounds that, it has not met the thresh hold for its certification for hearing by the Supreme Court. To Njeri Njagua the applicant’s major complaints against the High Court judgment were that the trial Judge’s opening remarks. However, these  notwithstanding, the trial Judge went a head to write a fair and balanced judgment which has been  upheld  by  this  Court;  despite  the  Court  of Appeal  reproaching  the learned trial Judge for these unfortunate remarks argued M/s Njeri Njagua,upon the said Court revisiting, re-evaluating and re-assessing the evidence as placed before it, the learned appellate Judges confirmed the findings of the High Court; the issues set out in paragraph 8 of the applicant’s supporting affidavit as the issues intended for interrogation, by the Supreme Court do not meet the threshold for submission to the Supreme Court for interrogation as these do not demonstrate existence of any public interest in them. They are simply personal issues between the applicant and the respondent, fairly adjudicated upon by both the High Court and this Court. Reference of these to the Supreme Court for interrogation will be nothing but an abuse of the court process aimed at prolonging this protracted litigation which has been in Court for over 36 years.

9.          On  law  and  case  law,  the  respondent  relies  on  Article  10(b)  of  the Constituion of Kenya, 2010 for the proposition that allowing the applicant’s application will infringe on the respondents human dignity as it will in essence prolong  the  denial  of  justice  to  her;  the  case  of  Telkom  Kenya  Limitedversus John O. Ochande [2014] eKLRand Charles Nderitu Gitui (suingonhis  behalf  and  as  legal  representative  of  Charity  Nyaguthi  Gitoi(deceased)  versus  Christopher  Muchemba  Werui  and  2  others  [2014]eKLR for the proposition that the Supreme Court  has already on its own in the case of In the matter of Hermanus Phillipus Steyn versus GiovanniGnecci Ruscone (supra) provided the extend of the threshold required to be met by any applicant seeking certification of his/her matter for determination by the Supreme Court.

10. Our Jurisdiction to grant the relief sought has been invoked vide Article 163(4) (b) of the Kenya Constitution 2010, Section 15 and 16 of the Supreme Court Act No. 7 of 2011 and Rule 1(2) of the Court of Appeal Rules. Article 163(4) (b) Appeals shall lie from the Court of appeal to the Supreme Court.

(a)  In any other case in which the Supreme Court, or the Court of Appeal certifies that a matter of general public importance is involved, …..

Section 15(1) Appeals to the Supreme Court shall be heard only with the leave of the Court.

Section 16(1) The Supreme Court shall not grant leave to appeal to the Court unless it is satisfied that it is in the interest of justice for the Court to hear and determine the proposed appeal.

(2)  (a)  The  appeal  involves  a  matter  of  general  public importance; or

(b) (Struck out)

Rule 1(2) of the Court of Appeal Rules enshrines the inherent jurisdiction of the Court of appeal. It provides:-

“Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

11. Issues the applicant intends to raise before the Supreme Court have been set out in paragraphs 8 and 9 of the supporting affidavit reproduced herein as hereunder:-

8. “That I am advised by my Advocate Mr. Kagucia that the matters which this Court ought to consider whilst dealing with this application are:-

a.         It is a matter of general public importance that a new suit on the same subject matter cannot proceed to hearing when an earlier suit is still pending or there was no bar to re-constitute the file in HCCC No.389 of 1978.

b.         It is a matter of general public importance that issues relating to land in Kenya cannot be adjudicated upon by pre-conceived notions in the mind of the Judge that one of the parties was fraudulent when no fraud was pleaded and when there was no evidence that the applicant  was  responsible  for  the  alleged disappearance of file in HCCC No.389 of 1978.

c.          It is a matter of general public importance  that a suit cannot proceed to hearing when there is a pending substantial application to be disposed off and more so when the applicant was acting in person.

d.         It  is  a  miscarriage  of  justice  when  a  judge proceeds to formulate or write his judgment with notion in mind that the applicant had greased the hands of the “good District Land Registrar” to obtain his title to the land L.R. 95/4/1 now known as Ndundori/Miroreni Block2/56 (Ndimu) when it was a first registration.

e.         Where an appellate Court makes a finding to the effect that the proceedings were tainted by reason of the trial judge’s bias, at least a re-trial ought to have been ordered.

9.        In her evidence in the High Court the respondent stated that she paid Kshs.100, 000. 00 for the land whilst the “agreement talks of Kshs.85, 000. 00.

12. The   judgment  of  Rimita  J  complained  of  was  written  pursuant  to  the provisions of Order XX Rule 4 of the Civil Procedure Rules (as it then was) now Order XXI Rule 4 of the Civil Procedure Rules. Order XX rule 4 as it was then and Order XXI Rule 4 as it is now provided and still provides thus:-

“Judgment in defended suits shall contain a conclusive statement of the case, the point for determination, the decision thereon, and the reasons for such a decision”

In the case of PIL Kenya Limited versus Oppong [2009] KLR442,this Court held inter aliathat:-

“4. Where as it is not necessary for every Judgment to contain what each witness said in evidence as that would in some cases mean irrelevant evidence being included in the judgment and in that would make judgments unnecessarily long and thus delay expeditious disposal of the  matter,  and  whereas  a  judgment  in  a  civil  case  is proper if it complies with order 20 rule 4 of the Civil Procedure Act, where a Court has decided to set out evidence of the parties to a suit even if only briefly, it shall for purposes of apparent impartially set out the conflicting evidence of both parties before analyzing and evaluating the same”

In Mulla.The code of Civil Procedureby Sir Dinshah Fardunji Mulla. 18thEdition  Reprint  2012  B.M.  Prasad:Butter  Worths:  Wadhwa  pg.  2273paragraph 5 on contents of Judgmentobservations are made inter alia thus:-

“The  decision  of  a  case  should  be  based  on  grounds raised in the pleadings. Where a plea is not taken in the pleadings and an issue has not been raised, evidence on such a plea should be disregarded and a finding need not be given. The Court also need not give findings on questions raised in arguments but not in the pleadings. A finding without pleadings and issue, is not binding on the parties. A decision based on findings beyond the scope of the suit is outside the jurisdiction of the Court. It has also been held that “un balanced language is generally out of place in judicial adjudication. The judgment should contain points  for  determination,  discussion, the  evidence,  oral and documentary and give the reasoning on which the conclusion was reached

....

Judges   should   not   inject   his   own   views   into   the

Judgment.”

13. Nowhere in the content of order XX rule 4 as it was then and Order XXI rule 4 as it is now or the above holding in the PIL Kenya Limited casedo we find room or an allowance for intemperate remarks or unsubstantiated assertions by a judge or judicial officer. It means that the “ judgment”of Rimita, Jwhen properly so called should have been within the confines set out in the then order XX rule 4 as was confirmed by this Court in the PIL Kenya Limited case (supra).This has been lend credence by observations set out above from MullaCode of Civil Procedure (supra) and the book of K. Manion Civil Jurisprudence by Kamal Publishers. D-232, Saruadaya Enclave, New Delhi-110017. At page 172 paragraph 9, there is found the title  “character of judgment”

It is stated thus:-

“The judgment delivered by Courts must be characterized by restraint of language, sobriety of expression and addiction which does not smack of being undignified”(See also Mula)

14. The question to be answered by us is whether by the learned trial Judge over stepping the parameters set by order XX rule 4(supra) and as confirmed by the reproach by the learned Appellate Judges; perse, satisfies and or warrants certification of this matter to the Supreme Court. Both sides are in agreement that the principles, criteria and the test to be applied as to whether to certify a matter or not for adjudication by the Supreme Court are those that were  set by  the  Supreme  Court  itself  in  the  case  of  Hermanus  Phillipus  Steyn(supra)as approved by this Court in civil application No. Sup.24 of 2013 Telkom Kenya Limited versus John O. Ochanda (suing on his behalf andon behalf of 996 Former employees of Telkom Kenya Limited (supra)andCharles Nderitu Gitui (suing on his behalf and as legal representative ofCharity Nyaguthii Gitui (deceased) (supra). These are set out at paragraph 60 of the Hermanus Phillipus Steynicase as:

(i)   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 is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest.

(ii)   Where the matter in respect of which certification is  sought  raises  a  point  of  law,  the  intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest.

(iii) Such question of questions or law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;

(iv) Where the application for certification has been occasioned by statutus of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination,

(v) Mere apprehension of miscarriage of justice, a matter most apt for resolution in ]other] superior courts, is not a proper basis for granting certification of an appeal to the Supreme Court; the matter to be certified  for  a  final  appeal  in  the  Supreme  Court, must fall within the terms of Article 163(4) (b) of the Constitution;

(vi) The intending applicant has an obligation to identify and concisely set out the specific elements of  “general  public  importance”  which  he  or  sheattributes to the matter for which certification is sought;

(vii)Determination  of fact in contests between parties are not, by themselves, a basis for granting certification   for   an   appeal   before   the   Supreme Court.”

15. The above test elements have been applied to all the issues fronted by the applicant for certification to the Supreme Court. My observations on the same are that these arise from a determination of facts in contest as between the applicant and the respondent; issues in controversy as between the applicant and the respondent have been the subject of judicial determination both in the High Court (Nakuru HCCC No.415/1998) and the Court of Appeal Nakuru Civil Appeal No.274 of 2006 (Nak34/2006). They partially raise a point of law touching on issues of bias and fair trial arising from a judgment in which intemperate language has been partly employed against the applicant on the one hand, and on the other hand, there is complaint that the learned trial Judge in the said judgment also took into consideration matters that had not been pleaded and or agitated by the parties to that litigation. In the manner framed, they have greater leaning towards specifics  of the litigation between the applicant and the respondent namely, A complaint that the learned trial Judge flauted well known Civil Procedure Rules and practices by determining a latter suit (Nakuru HCCC 415/1998) during the pendence of an earlier suit (Nakuru HCCC No.369 of 1978), by proceeding with the hearing in the latter suit  (Nakuru  HCCC  415/1998)  in  the  wake  of  a  pending  interlocutory application seeking to forestall the hearing and disposal of the latter suit until the status of the earlier filed suit was known, by introducing and taking into consideration  extraneous  issues  of  corruption,  attributing  these  to  the applicant in the absence of a pleading and agitation of such issues by the parties  and  lastly  by  failing  to  take  note  of  the  contradictions  in  the respondents testimony and pleadings as regards the alleged  price of the subject matter of the litigation.

16.  It is also my observation that since these are framed with heavy leaning towards the specifics of the litigation as between the parties herein, they cannot fall into the category of issues that transcend beyond the litigation as between the parties herein and are therefore not fit for certification to the Supreme Court. The issues as framed also do not allege uncertainity of the law in the area of litigation which has given rise to contradictory precedents needing  reconciliation  by  the  Supreme  Court.  Instead  there  is  alleged apparent misapprehension of justice arising from alleged imputation of corruption on the part of the applicant which was satisfactorily dealt with by the Court of Appeal. Issues of alleged bias and lack of fair hearing no doubt transcends the applicant and respondent’s litigation. These are contained in issue number 8(d) and 8(e). However, in the manner they are framed, there is clear indication that they center on the alleged bias and lack of fair trial in relation to the particular litigation between the parties herein. Had these been framed  in  a  manner  that  would  have  made  them  transcend  beyond  the litigation herein, they may very well have been used for certification to the Supreme Court for it to interrogate the bare skeleton framework in Order XX rule 4 now Order XXI rule 4 and come up with guidelines as to the elements of a judgment that complies with the principles of the rule of law, that demonstrates evidence of equal treatment or fair assessment of evidence as regards disputes between litigants before a Court of law (Article 102(a) (b), one   that demonstrates existence of elements of a fair trial, one that demonstrates elements of public accountability of a particular judicial officer, devoid of lack of improper motive, contains elements of impartiality, demonstrates objectivity, and one that demonstrates accountability of the public judicial officer not only to the litigants before him or her but to the entire public as well, elements of good judicial language. In other words, a judgment that qualifies to be an all round judgment that is prima facie evidence that justice  was  not  only  done  but  has  been  seen  to  have  been  done.  The Supreme Court would also have been invited to provide guidelines as to the role of the Court of Appeal with regard to assessment of Judgments that may apparently be within the ambit of Order XXI rule 4 but fall short of the current demands on the administration of justice as envisaged by the Constitutional provisions relied upon by the applicant.

17. I  do appreciate that Article 163(4) (a) does not preclude this Court from framing such issues of its own motion and then certify these for interrogation by the Supreme Court. It is however my opinion that in circumstances where

preferred issues have been fronted by a litigant, it will not be prudent for the Court to impose its will on the parties, in absence of an alternative prayer that in the event of the issues framed by the party not meeting the threshold, on the basis of the facts presented to Court, the court does identify issues that transcends the litigation before it and then certify these for interrogation by the Supreme Court. No such invitation was extended to us. The upshot of the above assessment is that the application stands faulted.

18. I have had the privilege of reading the drafts of the Hon. Mr. Paul Kihara Kariuki, PCAand my brother Judge- the Hon Mr. Justice G.B.M. Kariuki JA.I agree with the final conclusion. Orders shall be as proposed by the president of the Court of Appeal.

Dated and delivered at Nairobi this 10thday of October, 2014.

R.N. NAMBUYE

………………….…………..

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR

D/O

RULING OF G.B.M. KARIUKI SC – JA

1. The  appellant, George  Chege  Kamau, seeks  in  his  notice of motion  certification  under Article 163(4) b)  of the Constitution that his  intended appeal to  the Supreme Court from the decision of this  Court dated July 25th  2013  (made in Civil  Appeal No.274 of 2006  (Nai 34/2006)) is of general public importance.

2. The facts on which the  application is grounded are elegantly set out in  the  Ruling  by  the  President  of the Court, the Hon.  Mr. Justice P. Kihara  Kariuki, PCA, which I have  had  the  advantage of reading in draft.

3. I am  in complete agreement with the  President’s decision to decline the application.

4. The  applicant’s learned counsel, Mr.  A. B. Shah, was  at pains  to  persuade us that because of the  ostensible bias  by  the learned Judge of the High  Court against the  applicant, the  latter’s rights to human dignity  and  equality and  to fair hearing were violated and  that the Judge  contravened the  national values and principles of governance set out in Article 10(2) (a) of the Constitution.  This contention was  informed by  the  condemnation of the applicant as a corrupt person by the  trial Judge who  stated that the  applicant was a corrupt person.  Mr. Shah’s take  was that the  learned Judge  lacked neutrality  in  hearing the suit and  that miscarriage of justice ensued warranting a retrial.

5. Miss  Njeri Njagua,the learned counsel for the  respondent, opposed  the  application  and   relying  on   her   client’s  replying affidavit submitted that the  applicant had  not met the  test  for an order for leave  to appeal to the Supreme Court.   She contended, correctly  in  my   view,  that   although  the   applicant  alleged miscarriage  of  justice,  justice  was   administered  and   there  is nothing new  that could  be  established in  the  litigation as all  the issues  of law had been  addressed and determined.  Clearly, in her view, the  matter  raised was  not of general public importance. She urged the Court to dismiss the application.

6. In  its  judgment  dated 25th   July  2013, this   Court  (Karanja, Mwilu  & Musinga JJ.A) faulted the learned Judge’s judgment which the  applicant attacked.  This Court considered the  entire record of appeal  as  well   as  the  submissions made   by  counsel for  both parties and while  observing that the  learned trial Judge did not set out properly in his judgment the points for determination and  the reasons for the decision made, nevertheless this Court found that the  Judge  did  arrive at the correct determination in  the  matter which was  whether the respondent, Esther  Wanjira Kamau, was entitled to a  share  of the  land  comprised in  the title known as Ndundori/Miroteni/Block  2/56   (Ndima)  formally  known  as L.R.9514/1 (the  suit land).  On the  basis  of the  evidence placed before  the   High   Court,   this  Court   found  that  the   Judge   was justified in  holding that the suit land  was  jointly  owned by  the applicant and  the  respondent and  therefore saw  no  reason to disturb that finding and the  decision thereof.

7. As  for  the   conduct  of  the  Judge   which  the  applicant’s counsel;  made   heavy  weather  of,  this  Court   in   its   judgment criticized the learned Judge’s intemperate remarks against the applicant (who   was  the   appellant in  the   appeal in  this   Court). This court rendered itself thus-

“Such  attacks on  a party’s character have  no  place in   a   judgment  unless    they  can   be   justified  on   the evidence on  record.   But having said  that, we  think that the appellant’s conduct on  the hearing date in  trying to frustrate the hearing of  the suit by  attempting to side- step the consent that had  been  recorded by counsel must have   infuriated the trial  Judge.   That   notwithstanding, the learned Judge  took his  anger a little too far, judging by the kind  of remarks he made regarding the appellant.”

“Having  re-evaluated  the  evidence  thatwasadducedat  the trial  Court, we  are   persuaded that  the learned Judge  arrived at  the right determination of  the suit  as  regards  division  of   the  suit-land between the parties herein.   We  see  no  basis  for  interfering with the decree  that  was   issued   on   1stAugust2001. Consequently,we dismiss  this appeal with costs to the respondent.

8. Notwithstanding the  intemperate  language by  the learned Judge   of  the    High    Court   against  the    applicant,  this    Court confirmed in  its  judgment that at the end  of the  day  justice was meted out to the  parties.

9. The  applicant has  based  his  application for certification on the  conduct and  intemperate language by  the learned Judge  of the   High   Court.       His  counsel  was  at pains   to show   that the threshold set by  Article 163(4) (b)of the  Constitution had  been attained  and   that a  matter  of  general public  importance  was involved to warrant an appeal to the  Supreme Court.  The matter complained of did  not bear  on  the  decision made   by  the  High Court which was confirmed by this  Court to be correct.  The issue for determination in  the  suit was  division of the  suit-land.   That issue  did  not evince any  matter  of general public importance. Neither the decision of the  High  Court  which was  upheld by  this Court  nor  this  Court’s  judgment threw up  any  issue  of general public importance to  warrant leave   to  appeal  to  the   Supreme Court.

10. The jurisdiction of this  Court under Article 163(4) (b)of the Constitution is to determine whether, in an application seeking certification to  appeal to  the Supreme Court, a matter of general public  importance  is   involved.     The   jurisprudence  that  has emerged  in   relation  to   the   threshold  on   what  constitutes  “a matter of general public importance”  under Article 163(4) (b)  in an intended appeal to the  Supreme Court shows  that such  matter must transcend the  interest of the  parties to  the litigation.   It must impact on  society and/or have  consequences that bear  on public interest.

11. In   the  case   of  Hermanus  Phillipus  Steyn  V.GiovanGnecchi-Ruscone(Civil   Application  No.   Sup   4   of  2012   (UR 3/2012) the  Supreme Court succinctly stated:-

“1.   At law,  thereis  no   exhaustive  definition  of  what amounts to “a matter of general public importance”.

2.      In Kenya, the Court of Appealhas  dealt with what amounts  to  a   “a  matter  of  general  public importance” on at least three occasions.

3. As  early  as   8thMarch 1979,  the  Court ofappeal(Madan, WambuziJJ.A & Miller Ag. JA,) stated, per Madan JA, in  Murai v. Wainaina (No.4) (1982) KLR at page 48-49 that:

“…..A question of general public importance isa  question which takes into account the well-being of  the  society  in   just  proportions.     Apart  from personal freedom, what is  more important than the system of land holding in  a society?   Landmarks are the basis of continuity of lift in human society.

…..the  questionis  obviously made  one   of general public importance for the subject affects the land rights of a large number of people not merely the portion to the appeal.

…..Indeed itis of general public importance that the exact status of Ahoi  be  resolved by the court.”

12. In  Esso  Standard v  Income [1971]  EA  127 Duffus, P.stated at page  141 as follows:

The  appeal having been  set down  for  hearing we  had  the advantage of full  consideration of the proceedings and  in our  view   the points for  decision in  this case  were on  a matter of public  importance; the point involved the circumstances  in   which   foreign  investors  have   to  pay income tax  on  loans   made  abroad  for  the  purposes of development  in   East  Africa.     This   is   undoubtedly  a question which  should  be  clearly defined from  the point of  view   of  foreign  investors and   it is  also  a  matter of great importance to the three States of  the Community that  there  should   be   no   doubt  about  the  position  in future.   We   therefore, in  all  the  circumstances of  this case, granted the extension and  reserved our  decision on the costs until we heard the substantive appeal.”

13. Madan  JA, as he then  was, stated in Belinda Murai v Amos Wainaina [1982]KLR 38  in  relation to a “Muhoi”  under Kikuyu customary law with regard to land  that;

“thisappeal is of  public  importance as  it touches on  the subject of land  rights, and  will  not only  affect the parties to  the  appeal  but  will   also   affect  a  large  number  of original land  owners, by  dethroning them, causing economic and  social  upheaval…”

“…a question of general public  importance is a question which  takes into account the well-being of  the society in just proportions.    Apart from  personal freedom, what is more   important  than  the  system of  land   holding  in  a society?

“…if  the position of a Muhoi which  I have  earlier set out has been  correctly expounded, which  has yet to be decided, the question is obviously made one  of general public  importance for  the subject affects the land  rightsof a large number of people and  not merely the portion to the appeal…”

In the  light of these  principles, it is clear  that the  issues  that the applicant has raised do not involve a matter of general public importance.

14. The   draft  Petition   of  Appeal attached  to  the   applicant’s application  for  certification   of  the    matter  shows    that  the proposed grounds of appeal relate to the  dispute between the parties over  the suit land  and the conduct of the  learned Judge of the  High  court.    Clearly, these issues  have  no bearing on public interest.    They  do  not even  evince public interest concerns.  In short,  they  do   not  amount  to   a   matter   of  general  public importance within the  meaning of Article 163(4) (b)  of the Constitution.

15. It is my  finding that the  application does  not show  that the matter intended to be pursued in the Supreme Court is of general public importance not least  because the  issues  involve only  the parties to  the  litigation and  do not in any  way  impact on society or affect the  rights of other people.  At any  rate, all the  issues  of law  in  the  litigation were  determined initially at the  High  Court level  and subsequently by this  court on appeal.   There  is nothing shown   in  the application that can  remotely be  said  to  involve interest of the  general public or even  a section of the  society in relation to the suit-land.

16. The Supreme Court cannot be engaged in litigation, however interesting, merely to gratify the curiosity of litigants.  It is there to  guide and  lead  on  administration of justice and  development of our jurisprudence.

17. The application has no merit. I agree  with the  decision of the President of the  Court that it should be dismissed and disposed of in line  with the  orders he has proposed.

Datedand   delivered at Nairobi this 10thDay  of October,2014

G.B.M. KARIUKISC

………………….....

JUDGE OF APPEAL

mwk.

I certify that thisis a

Truecopy  of the original.

DEPUTY REGISTRAR